                                                                       FILED
                                                                United States Court of
                UNITED STATES COURT OF APPEALS                      Appeals
                                                                    Tenth Circuit
                       FOR THE TENTH CIRCUIT
                     _________________________________
                                                                  March 29, 2019

                                                               Elisabeth A. Shumaker
UNITED STATES OF AMERICA,                                          Clerk of Court

        Plaintiff - Appellee,

v.                                                    No. 18-6189
                                            (D.C. No. 5:18-CR-00125-HE-1)
JOSE RAMON CONTRERAS-                                (W.D. Okla.)
CABRERA, a/k/a Jose Contreras-
Cabrera, a/k/a Jose Ramon
Contreras, a/k/a Ramon Contreras,
a/k/a Hector Morales, a/k/a Joe
Anthony Rodriguez, a/k/a Jimmy
Marie Morales,

        Defendant - Appellant.
                    _________________________________

                        ORDER AND JUDGMENT *
                        _________________________________

Before BACHARACH, McKAY, and O’BRIEN, Circuit Judges.
               _________________________________




*     The parties have not requested oral argument, and it would not
materially help us to decide this appeal. We have thus decided the appeal
based on the appellate briefs and the record on appeal. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value. Fed. R.
App. P. 32.1(a); 10th Cir. R. 32.1(A).
         The defendant, Jose Ramos Contreras-Cabrera, pleaded guilty to

unlawfully reentering the United States after removal. See 8 U.S.C.

§1326(a). But he later sought to withdraw the guilty plea, arguing that the

original removal order had been invalid. The district court denied the

motion to withdraw, reasoning that 8 U.S.C. § 1326(d) prohibited Mr.

Contreras-Cabrera’s collateral challenge to the validity of the removal

order.

         Mr. Contreras-Cabrera appeals, arguing (1) that he either satisfied or

was excused from satisfying § 1326(d) and (2) that the original removal

order was void because the immigration judge lacked subject-matter

jurisdiction. We reject these arguments and affirm the denial of the motion

to withdraw the guilty plea.

1.       Standard of Review

         When reviewing the denial of Mr. Contreras-Cabrera’s motion to

withdraw his guilty plea, we apply the abuse-of-discretion standard. United

States v. Sandoval, 390 F.3d 1294, 1297 (10th Cir. 2004).

2.       Requirements to Collaterally Challenge the Removal Order

         Mr. Contreras-Cabrera contends that the district court abused its

discretion in denying his motion to withdraw because his alleged acts

would not have constituted the crime of illegal reentry. This crime is

defined as the reentry into the United States after exclusion, removal,

                                        2
deportation, or denial of admission. 8 U.S.C. § 1326(a). Mr. Contreras-

Cabrera contends that he did not commit this crime because his prior

removal order had been void.

      To collaterally challenge the removal order, Mr. Contreras-Cabrera

had to prove three elements:

      1.    he had exhausted any administrative remedies that may have
            been available to challenge the removal order,

      2.    the removal proceedings had improperly deprived him of an
            opportunity for judicial review, and

      3.    the entry of the removal order had been fundamentally unfair.

See 8 U.S.C. § 1326(d)(1–3). The district court concluded that Mr.

Contreras-Cabrera had failed to satisfy any of the three elements. Because

we agree that Mr. Contreras-Cabrera failed to exhaust administrative

remedies, we affirm. 1

3.    Failure to Exhaust Administrative Remedies

      We start (and ultimately end) with the first element: exhaustion of

administrative remedies. In considering this element, we begin with our

overarching standard of review: abuse of discretion. See p. 2, above. A

court can abuse its discretion by committing legal error. United States v.




1
      Because we ultimately conclude that Mr. Contreras-Cabrera did not
prove exhaustion, we need not address his arguments involving the second
and third elements of 8 U.S.C. § 1326(d).
                                    3
Sandoval-Enrique, 870 F.3d 1207, 1214 (10th Cir. 2017). Here, though, the

district court did not abuse its discretion in finding a failure to exhaust

administrative remedies.

      The removal order was issued in 1992. Before the immigration judge

ordered removal, Mr. Contreras-Cabrera had conceded removability and

waived his right to appeal the removal order. By waiving his right to

appeal, Mr. Contreras-Cabrera would ordinarily have failed to exhaust

administrative remedies. United States v. Chavez-Alonso, 431 F.3d 726,

728 (10th Cir. 2005).

      But Mr. Contreras-Cabrera insists that he was not required to exhaust

administrative remedies because (1) exhaustion would have been futile and

(2) the removal order was void for lack of subject-matter jurisdiction. We

reject both contentions.

      According to Mr. Contreras-Cabrera, it would have been futile in

1992 to argue in the administrative proceedings that the removal order was

void. But futility does not excuse a failure to exhaust when administrative

exhaustion is required by a statute. See Booth v. Churner, 532 U.S. 731,

741 n.6 (2001) (courts will “not read futility or other exceptions into

statutory exhaustion requirements”). Because administrative exhaustion is

required by a statute (8 U.S.C. § 1326(d)(1)), no futility exception exists.

See United States v. Copeland, 376 F.3d 61, 66–67 (2d Cir. 2004) (holding

                                       4
that no futility exception exists, with one exception not relevant here, for

the requirement of administrative exhaustion under 8 U.S.C. § 1326(d)). 2

We thus need not decide whether it would have been futile for Mr.

Contreras-Cabrera to exhaust administrative remedies.

      Mr. Contreras-Cabrera also contends that the immigration judge

lacked subject-matter jurisdiction, rendering the removal order void and

eliminating the need for administrative exhaustion. According to Mr.

Contreras-Cabrera, the immigration judge would have obtained jurisdiction

upon the filing of a notice to appear. See 8 C.F.R. § 1003.14(a) (stating

that jurisdiction vests with an immigration judge when a charging

document is filed). But he adds that the notice to appear needed to state the

date and time for his appearance before an immigration judge. See 8 U.S.C.

§ 1229(a) (stating that an alien in a removal proceeding must be provided a

written notice containing the date and time to appear). Because Mr.




2
       When a statute requires a litigant to exhaust administrative remedies
that “may have been available,” 8 U.S.C. § 1326(d)(1), exhaustion may be
unnecessary if “the relevant administrative procedure lacks authority to
provide any relief or to take any action whatsoever in response to a
complaint.” Booth v. Churner, 532 U.S. 731, 736 (2001). In United States
v. Copeland, the Second Circuit characterized this principle as a type of
futility exception. 376 F.3d 61, 66–67 (2d Cir. 2004). But Mr. Contreras-
Cabrera argues only that he would not have been able to prevail in an
earlier administrative challenge; he doesn’t question the availability of a
remedy under the administrative procedure.
                                       5
Contreras-Cabrera had not received a notice to appear with the date and

time to appear, he argues that the immigration judge never obtained

subject-matter jurisdiction.

      Mr. Contreras-Cabrera’s argument fails based on the requirements in

place when the immigration judge ordered removal (1992). At that time,

immigration authorities were not using notices to appear and had no

statutory obligation to include the date or time in the initial document sent

to the alien. See 8 C.F.R. § 3.14(a) (1992); 8 C.F.R. § 3.13 (1992). These

documents and requirements came roughly four years after Mr. Contreras-

Cabrera’s removal order. 3

      In 1992, the regulations vested jurisdiction in the immigration judge

upon the filing of a charging document. 8 C.F.R. § 3.14(a) (1992). And no

one questions that a charging document was filed prior to Mr. Contreras-

Cabrera’s removal proceedings. Thus, failure to satisfy the later statutory




3
      In district court, the government did not rely on the timing of the
statutory requirements to include the date and time in the notice to appear.
Thus, Mr. Contreras-Cabrera contends that the government forfeited this
timing issue. But we are “free to affirm a district court decision on any
grounds for which there is a record sufficient to permit conclusions of
law.” United States v. Romero, 749 F.3d 900, 906 (10th Cir. 2014). As a
result, we can affirm on this ground even if the government failed to raise
the timing issue in district court. See United States v. Mosley, 743 F.3d
1317, 1324 & n.2 (10th Cir. 2014) (considering an argument for affirmance
made by the government for the first time on appeal even though the
argument conflicted with the government’s position in district court).
                                        6
requirements could not have affected the immigration judge’s jurisdiction

in 1992. 4

4.    Conclusion

      Mr. Contreras-Cabrera did not exhaust administrative remedies, and

he could not avoid the exhaustion requirement based on futility or

characterization of the removal order as void. Given the failure to exhaust

administrative remedies, Mr. Contreras-Cabrera could not collaterally

challenge the validity of the removal order. Thus, the district court did not

abuse its discretion in denying the motion to withdraw Mr. Contreras-

Cabrera’s guilty plea. We therefore affirm.


                                       Entered for the Court


                                       Robert E. Bacharach
                                       Circuit Judge




4
      Mr. Contreras-Cabrera invokes Pereira v. Sessions, 138 S. Ct. 2105
(2018), arguing that it renders an immigration proceeding void if it begins
through a notice to appear that omits some of the information required in 8
U.S.C. § 1229(a). But Pereira addressed a “narrow question” about the
interplay between § 1229(a) and a different statute than the one at issue.
138 S. Ct. at 2110. Because we ultimately conclude that § 1229(a) does not
apply, we need not address Mr. Contreras-Cabrera’s argument concerning
Pereira.
                                      7
