                                                                FILED
                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS         Tenth Circuit

                                                                               April 28, 2020
                             FOR THE TENTH CIRCUIT
                         _________________________________                 Christopher M. Wolpert
                                                                               Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                              No. 19-2078
                                                       (D.C. No. 2:18-CR-02739-KG-1)
 EMANUEL FERMAN,                                                   (D.N.M.)

       Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
                  _________________________________

       Emanuel Ferman appeals the district court’s order denying his motion to dismiss

the indictment against him. For the reasons explained below, we affirm.

                                        Background

       Ferman became a lawful permanent resident of the United States in 1980. In 2004,

Ferman pleaded guilty to sexual assault under Texas Penal Code § 22.011. As a result of

that conviction, Ferman appeared before an immigration judge, who entered a removal

order. See 8 U.S.C. § 1227(a)(2)(A)(ii)–(iii) (stating that being convicted of aggravated

felony or two or more crimes of moral turpitude are removable offenses). He was


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive
value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
removed to Mexico on the same day. In 2012, Ferman reentered the United States and

was convicted of illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). After

serving a prison term for illegal reentry, Ferman was removed again in 2016.

       In 2018, Ferman again reentered the United States. A grand jury indicted Ferman

for illegal reentry. See § 1326(a), (b). In response, Ferman moved to dismiss the

indictment, arguing that the 2004 removal order was defective. The district court,

adopting the magistrate judge’s report and recommendation with modifications,

concluded that Ferman failed to exhaust available administrative remedies in connection

with his 2004 removal order. Accordingly, the district court concluded that Ferman could

not collaterally attack the 2004 removal order and thus denied Ferman’s motion to

dismiss. Ferman then entered a conditional guilty plea, reserving his right to appeal the

denial of his motion to dismiss. Ferman now appeals.

                                          Analysis

       We review de novo the legal sufficiency of a prior removal order. See United

States v. Almanza-Vigil, 912 F.3d 1310, 1316 (10th Cir. 2019). “When the government

prosecutes a noncitizen for illegal reentry, it typically must prove two things: (1) that the

noncitizen left the United States with an outstanding order of removal against him and

(2) that afterward, the noncitizen entered, tried to enter, or was found in the United

States.” Id. A prior removal order is evidence of the first element. 1 Id. A defendant may


       1
        Although Ferman challenges the 2004 removal order, the 2018 indictment is
predicated on Ferman’s 2016 removal and does not explicitly reference the 2004 order.
Because the basis of the challenged indictment is the 2016 removal, it is unclear whether
Ferman’s attack on the 2004 removal order, even if successful, would have any bearing
                                              2
collaterally attack that prior removal order only in limited circumstances. See § 1326(d);

Almanza-Vigil, 912 F.3d at 1316. Specifically, § 1326(d) outlines three elements

necessary to raise a collateral attack. The first element requires that a defendant

“exhaust[] any administrative remedies that may have been available to seek relief

against the order.” § 1326(d)(1). The second element requires a defendant to demonstrate

that the prior removal proceeding “improperly deprived [him or her] of the opportunity

for judicial review.” § 1326(d)(2). And the third element requires a defendant to

demonstrate that the removal “order was fundamentally unfair.” § 1326(d)(3). The

defendant “must prove each of § 1326(d)’s elements to overcome the presumed legality

of the earlier deportation order.” United States. v. Adame-Orozco, 607 F.3d 647, 651

(10th Cir. 2010); see also id. at 649 n.1 (explaining that deportation orders are now

generally called removal orders).

       On appeal, Ferman argues that the 2004 removal order “deprived [him] of the

opportunity for judicial review” and “was fundamentally unfair” under the latter two

elements of § 1326(d) because (1) procedural deficiencies in the removal proceedings

constituted due-process violations; (2) the Texas sexual-assault conviction is not an

aggravated felony; (3) the immigration judge lacked authority; and (4) his attorney in

those proceedings was ineffective. § 1326(d)(2)–(3). As for the first element of


on the 2018 indictment. But when questioned at oral argument about the indictment’s
reliance on the 2016 removal, both parties asserted that the 2016 removal was premised
on the 2004 removal order. Oral Argument at 14:18–36 (counsel for Ferman), 24:30–36
(government). Further, the 2004 removal order is the only removal order in the record
before us. In any event, because the parties address only the 2004 removal order, we
consider only that order and do not address the 2016 removal.
                                              3
§ 1326(d), Ferman argues that the circumstances of his case excuse his failure to exhaust

his administrative remedies. But even if exhaustion could be excused, Ferman does not

persuade us that we should excuse exhaustion where, as here, Ferman knowingly waived

his right to appeal the immigration judge’s order. See United States v. Chavez-Alonso,

431 F.3d 726, 728 (10th Cir. 2005) (finding noncitizen knowingly waived right to appeal

deportation order and declining to apply particular exception to exhaustion requirement

not at issue here).2

       A noncitizen “who knowingly waives the right to appeal an immigration judge’s

order of deportation fails to exhaust administrative remedies under § 1326(d)(1)” as a

matter of law. Id. at 728. Ferman concedes that, acting through his attorney, he waived

his right to appeal during his 2004 removal proceedings. But Ferman now asserts in a

declaration that he did not do so knowingly. Specifically, he contends that he did not

consent to be represented by this attorney and that the attorney failed to explain the

consequences of the waiver to him. Thus, Ferman argues that his prior waiver was

invalid.



       2
         Moreover, there is no uniform approach to exhaustion exceptions. Although
some circuits recognize certain exhaustion exceptions, others reject those exceptions.
Compare United States v. Lopez-Chavez, 757 F.3d 1033, 1044 (9th Cir. 2014) (finding
that ineffective assistance of counsel excuses exhaustion requirement), and United States
v. Johnson, 391 F.3d 67, 75 (2d Cir. 2004) (noting that exhaustion may be excused if
immigration judge provided misleading information regarding defendant’s eligibility for
discretionary relief), with United States v. Parrales-Guzman, 922 F.3d 706, 707–08 (5th
Cir. 2019) (rejecting exceptions to exhaustion requirement), and United States v.
Hernandez-Perdomo, 948 F.3d 807, 811 (7th Cir. 2020) (concluding that even if futility
exception to exhaustion exists, it would not apply where noncitizen failed to move to
reopen immigration case).
                                             4
       The district court weighed Ferman’s declaration against the transcript and audio

recording of the hearing and found that Ferman “failed to adduce persuasive evidence

that his waiver was not knowing and voluntary.” R. vol. 2, 64. We agree. The hearing

transcript and corresponding audio demonstrate that Ferman voiced no objection to his

attorney’s overall representation of him—even after the immigration judge gave Ferman

an opportunity to go off the record and confer with the attorney before continuing with

the hearing. Further, when the hearing continued and the attorney waived Ferman’s right

to an appeal, Ferman raised no objection to the waiver. Additionally, the written removal

order confirmed Ferman’s waiver; Ferman received a copy of this order on the same day

as the hearing and again raised no objection. Ferman’s failure to object

contemporaneously either to his attorney’s overall representation of him or more

specifically to the waiver of his right to appeal demonstrates that Ferman “knowingly

waive[d] the right to appeal” and therefore “fail[ed] to exhaust [his] administrative

remedies.” Chavez-Alonso, 431 F.3d at 728.

      Because Ferman’s appeal waiver definitively establishes that he failed to exhaust

his administrative remedies, we need not determine which other specific steps Ferman

should have taken to exhaust his claims. But we note that Ferman also failed to exhaust

other “administrative remedies that may have been available” to him. § 1326(d)(1). For

example, Ferman never sought discretionary relief from removal. See 8 U.S.C.

§ 1229a(c)(4). He also never appealed the removal order to the Board of Immigration

Appeals to contest his allegedly invalid waiver. See 8 C.F.R. § 1003.1(b)(3); In re

Compean, 25 I. & N. Dec. 1, 3 (Att’y Gen. 2009) (recognizing that Board can reopen

                                             5
removal proceedings to consider claims of ineffective assistance of counsel). Finally,

Ferman never asked the immigration court to reopen his immigration proceeding and

address the same arguments he now makes before us. See 8 U.S.C. § 1229a(c)(7).

       In sum, because Ferman failed to exhaust his administrative remedies, we need not

reach his remaining arguments seeking to collaterally challenge his removal order under

§ 1326(d).

                                        Conclusion

       Ferman failed to exhaust his administrative remedies. He therefore cannot

collaterally attack his prior removal order. Thus, we affirm the district court’s order

declining to dismiss the indictment.


                                              Entered for the Court


                                              Nancy L. Moritz
                                              Circuit Judge




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