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

                            FOR THE TENTH CIRCUIT                            June 18, 2019
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 18-6198
                                                    (D.C. No. 5:18-CR-00078-C-1)
 ROGELIO GARCIA-GALVAN, a/k/a                             (W.D. Oklahoma)
 Rogelio Galvan Garcia,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

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


      Rogelio Garcia-Galvan appeals from his conviction for illegal re-entry into the

United States after removal in violation of 8 U.S.C. § 1326(a), for which the district

court sentenced him to twenty-nine months’ imprisonment. Mr. Garcia-Galvan

pleaded guilty to the charge of illegal re-entry but, prior to sentencing, moved to

withdraw his guilty plea, arguing the Department of Homeland Security’s 2008



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Federal Rules of Appellate Procedure at 32.1 and Tenth Circuit Rule 32.1.
Notice to Appear was invalid and thus voided the immigration court’s 2008 removal

order for lack of jurisdiction. The district court denied the motion to withdraw,

holding Mr. Garcia-Galvan was not entitled to relief because he had waived the right

to notice and appeal in his 2008 proceedings and his challenge to those proceedings

did not satisfy any of the collateral attack conditions of 8 U.S.C. § 1326(d).

Mr. Garcia-Galvan timely appealed.

      We hold that Mr. Garcia-Galvan’s challenge is subject to the collateral attack

conditions of 8 U.S.C. § 1326(d) and fails because he has not satisfied the first

condition set forth in § 1326(d)(1). Therefore, we AFFIRM the district court.

                               I.     BACKGROUND

      In 2003, Mr. Garcia-Galvan arrived in the United States without being

admitted or paroled. Five years later, on May 12, 2008, the Department of Homeland

Security (“DHS”) served Mr. Garcia-Galvan with a Form I-862 notice to appear

(“2008 NTA”), which ordered him to appear for his removal hearing “on a date to be

set at a time to be set.” See ROA, Vol. I at 35–36. The same day, Mr. Garcia-Galvan

filed a Stipulated Request for Order and Waiver of Hearing (“2008 Waiver”), in

which he “agreed to a written order for removal as a final disposition” and “waived

his right to appeal the order of removal.” Id. at 42. On May 14, 2008, an immigration

judge reviewed the 2008 Waiver and ordered Mr. Garcia-Galvan removed (“2008

Order”). Mr. Garcia-Galvan was removed from the United States shortly thereafter.

      Mr. Garcia-Galvan re-entered the United States on January 25, 2011, and, as a

result, was convicted in the Western District of Oklahoma of illegal re-entry pursuant

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to 8 U.S.C. § 1326(a). The district court sentenced Mr. Garcia-Galvan to twenty-four

months’ imprisonment, and, after serving that sentence, Mr. Garcia-Galvan was again

removed from the United States on July 17, 2014. Mr. Garcia-Galvan once more re-

entered the United States on December 23, 2017, and the DHS notified him of its

intent to reinstate the 2008 Order.

       On April 3, 2018, a federal grand jury returned an indictment charging

Mr. Garcia-Galvan with illegal re-entry pursuant to 8 U.S.C. § 1326(a). Although he

originally pleaded guilty to the indictment, Mr. Garcia-Galvan moved to withdraw

his guilty plea, arguing the immigration court’s 2008 Order was void for lack of

subject-matter jurisdiction. In essence, he argued the DHS’s 2008 NTA did not

contain the date and time for his subsequent hearing and was, therefore, an invalid

charging document that could not vest jurisdiction in the immigration court under 8

C.F.R. §§ 1003.13 and 1003.14(a). Mr. Garcia-Galvan’s argument was based on the

Supreme Court’s recent decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018). In

that case, the Court held that a “notice to appear that fails to designate the specific

time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under

[8 U.S.C.] section 1229(a),’ and so does not trigger the stop-time rule” for purposes

of establishing ten years of continuous presence in the United States for cancellation

of removal. Pereira, 138 S. Ct. at 2114 (quoting 8 U.S.C. § 1229(d)(1)(A)).

       The district court denied Mr. Garcia-Galvan’s motion “because the underlying

premise for it, the alleged invalidity of the Notice to Appear, d[id] not provide [him]

entitlement to relief.” ROA, Vol. I at 176. First, the district court noted that the facts

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of Mr. Garcia-Galvan’s case were significantly different from those in Pereira and

that “[he] unquestionably had notice of his right to a hearing and unequivocally

waived any further notice or hearing and agreed to deportation.” Id. at 177.

Alternatively, the district court held that Mr. Garcia-Galvan failed to meet any of the

statutory requirements for collaterally attacking an underlying removal order. See

8 U.S.C § 1326(d). Mr. Garcia-Galvan timely appealed. We have jurisdiction

pursuant to 28 U.S.C. § 1291.

                                 II.    DISCUSSION

      Mr. Garcia-Galvan argues the district court abused its discretion in denying his

motion to withdraw his guilty plea. In general, we review the district court’s denial of

a motion to withdraw a guilty plea “for abuse of discretion.” United States v.

Sandoval, 390 F.3d 1294, 1297 (10th Cir. 2004). But where the district court’s denial

of the motion is based on its underlying inquiry into the merits of a § 1326(d)

collateral attack, we must review that inquiry de novo. See id. at 1297–98.

      Here, the district court denied Mr. Garcia-Galvan’s motion because “the

underlying premise for it . . . d[id] not provide [him] entitlement to relief.” ROA,

Vol. I at 176. The court reasoned that his 2008 Waiver and, alternatively, his failure

to demonstrably meet any of the collateral attack requirements of § 1326(d),

precluded the collateral attack. Mr. Garcia-Galvan challenges both of the district

court’s grounds for denial of his motion. However, we need only address the second

ground—dismissal based on the collateral attack conditions of § 1326(d)—to resolve

this appeal.

                                           4
 A.        Whether Mr. Garcia-Galvan’s challenge must be made subject to § 1326(d)

       Mr. Garcia-Galvan argues that he “is not required to meet 8 U.S.C. § 1326(d)’s

collateral attack requirements” because he is attacking the subject-matter jurisdiction

of the immigration court, which “can never be waived.” Appellant’s Op. Br. at

11–13. We find this argument unconvincing. Even assuming arguendo that Pereira

mandates an NTA include date and time in order for jurisdiction to vest with the

immigration court—a question which we have not yet answered in the Tenth Circuit

and which we do not resolve here—Mr. Garcia-Galvan must comply with the

conditions of § 1326(d) to collaterally attack his 2008 removal order.1

       In general, an order is not subject to collateral attack based on alleged lack of

subject-matter jurisdiction. Travelers Indem. Co. v. Bailey, 557 U.S. 137, 152–53 & n.6

(2009) (recognizing a court’s subject-matter jurisdiction was not subject to collateral

attack where the parties “were given a fair chance to challenge” subject-matter

jurisdiction in the original case). But in illegal re-entry prosecutions, the “Fifth

Amendment protects [a] noncitizen’s right to challenge” an underling removal order the



       1
         Courts are divided on whether this requirement would impact an immigration
court’s subject-matter jurisdiction. Compare United States v. Larios-Ajualat, No. 18-
10076-JWB, 2018 WL 5013522, at *6 n.4 (D. Kan. Oct. 15, 2018) (holding
regulations requiring date and time on NTA are “analogous to service of process in
federal court” implicating “personal jurisdiction,” not subject-matter jurisdiction);
United States v. Briones-Herrera, No. CR-18-214-D, 2018 WL 5315211, at *2–3
(W.D. Okla. Oct. 26, 2018) (observing that “[o]ne could reasonably question the
correctness of th[e] view” that an NTA implicates subject-matter jurisdiction); with
Hernandez-Perez v. Whitaker, 911 F.3d 305, 310–11 (6th Cir. 2018) (treating Pereira
argument regarding lack of date and time on NTA as implicating subject-matter
jurisdiction).
                                               5
government proffers as evidence to meet the elements of illegal re-entry, “even years

after the time for appeal has passed.” United States v. Almanza-Vigil, 912 F.3d 1310,

1316 (10th Cir. 2019) (citing United States v. Mendoza-Lopez, 481 U.S. 828, 837–39

(1987)). Accordingly, Congress has provided an avenue to collaterally attack a removal

order through 8 U.S.C. § 1326(d).

       Mr. Garcia-Galvan’s argument, even if based on subject-matter jurisdiction, is an

attempt to invalidate the removal order and is therefore subject to the requirements of

8 U.S.C. § 1326(d). Under that provision, “an alien may not [collaterally] challenge the

validity of the deportation order” unless the alien meets three conditions. See 8 U.S.C.

§ 1326(d). The statute does not exempt subject-matter jurisdiction challenges from this

requirement, and we see no reason to depart from the clear statutory language. See United

States v. Millan-Torres, 139 F. App’x 105, 109 (10th Cir. 2005) (unpublished)

(expressing doubt about the notion of a “broader exception for all collateral attacks based

on jurisdictional failings,” noting that “[n]o federal court has yet adopted [that] view”).

Therefore, we conclude Mr. Garcia-Galvan must satisfy § 1326(d)’s conditions to mount

his attack.

     B.       Whether Mr. Garcia-Galvan can satisfy the conditions of § 1326(d)

       We next consider whether Mr. Garcia-Galvan can satisfy the three conditions of

§ 1326(d). To collaterally attack an underlying removal order, an alien must show that:

       (1) the alien exhausted any administrative remedies that may have been
       available to seek relief against the order;
       (2) the deportation proceedings at which the order was issued improperly
       deprived the alien of the opportunity for judicial review; and
       (3) the entry of the order was fundamentally unfair.

                                              6
8 U.S.C. § 1326(d); see also Almanza-Vigil, 912 F.3d at 1316. The alien bears the burden

of “prov[ing] each of § 1326(d)’s elements.” United States v. Adam-Orozco, 607 F.3d

647, 651 (10th Cir. 2010). Here, the district court found that Mr. Garcia-Galvan failed to

“demonstrate any of these three” conditions. ROA, Vol. I at 177. We need not look

beyond the first to determine the district court did not abuse its discretion.

       Mr. Garcia-Galvan failed to exhaust his administrative remedies, as required by

§ 1326(d)(1), for two reasons: first, he waived his right to appeal the immigration judge’s

2008 Order. “An alien who knowingly waives the right to appeal an immigration judge’s

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

States v. Chavez-Alonso, 431 F.3d 726, 728 (10th Cir. 2005). Second, even if Mr. Garcia-

Galvan had not waived his right to appeal, he has failed to exhaust his administrative

remedies because he never raised his argument before the Board of Immigration Appeals

(“BIA”). We have repeatedly recognized that “[n]eglecting to take an appeal to the BIA

constitutes a failure to exhaust administrative remedies as to any issue that could have

been raised.” Sidabutar v. Gonzales, 503 F.3d 1116, 1118 (10th Cir. 2007); see also

Torres de la Cruz v. Maurer, 483 F.3d 1013, 1017 (10th Cir. 2007); cf. Dan

Kesselbrenner & Lory D. Rosenberg, Immigration Law & Crimes § 5:25 (Dec. 2018

Update) (“An appeal from an IJ to the BIA, without more, generally suffices to satisfy an

exhaustion requirement.” (quoting United States v. Diaz-Nin, 221 F. Supp. 2d 584, 587

(D. V.I. 2002))).




                                              7
       In response, Mr. Garcia-Galvan asserts that exhaustion “would have been futile”

because, at the time of the 2008 Order, a notice to appear had “legal effect regardless of

whether the date and time” were included in the document. ROA, Vol. I at 12–14

(internal quotation marks omitted). But “futility does not excuse a failure to exhaust when

administrative exhaustion is required by statute,” as it is here. United States v. Contreras-

Cabrera, 766 F. App’x 674, 2019 WL 1422627, at *2 (10th Cir. 2019) (unpublished); see

also Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[W]e will not read futility or other

exceptions into statutory exhaustion requirements where Congress has provided

otherwise.”). Moreover, we have “explicitly rejected the position that it is futile to lodge

an objection before an administrative body simply because the body has precedent which

contradicts the party’s position.” Gilmore v. Weatherford, 694 F.3d 1160, 1169 (10th Cir.

2012) (internal quotation marks omitted). Thus, the fact that the BIA would have likely

rejected Mr. Garcia-Galvan’s argument does not excuse him from the administrative

exhaustion requirement under the first prong of § 1326(d).

       In sum, even assuming Mr. Garcia-Galvan’s attack is appropriately a question of

subject-matter jurisdiction—which we do not decide—he unquestionably failed to raise

this question before the BIA and, thus, did not exhaust his administrative remedies. See

Sidabutar, 503 F.3d at 1118. As such, Mr. Garcia-Galvan’s collateral attack fails on the

first prong of § 1326(d), and the district court did not abuse its discretion in denying

Mr. Garcia-Galvan’s Motion to Withdraw Guilty Plea.




                                              8
                        III.   CONCLUSION

For the foregoing reasons, we AFFIRM the district court.

                                   Entered for the Court


                                   Carolyn B. McHugh
                                   Circuit Judge




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