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

                             FOR THE TENTH CIRCUIT                            June 2, 2020
                         _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 19-1446
                                                 (D.C. No. 1:18-CR-00150-MSK-GPG-1)
JOSE ALFREDO FLORES, a/k/a Jose                                 (D. Colo.)
Alfredo Flores-Quezada,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________


      Jose Flores appeals his conviction for illegal re-entry in violation of 8 U.S.C.

§§ 1326(a) and (b)(1). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                             I

      Flores, a native and citizen of Mexico, became a lawful permanent resident of the

United States in 1995. In 2009, he was convicted of felony vehicular eluding in violation


      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
of C.R.S. § 18-9-116.5. In 2012, an immigration judge ordered Flores removed,

concluding that vehicular eluding was an aggravated felony under 8 U.S.C.

§§ 1227(a)(2)(A)(iii) and 1101(a)(43)(F). The removal order indicates that his appeal

was due on April 27, 2012. Flores did not timely appeal.

       After returning to the United States without reapplying for admission, Flores was

apprehended and charged with illegal re-entry after a prior deportation. At that point, he

appealed his 2012 removal to the Board of Immigration Appeals (“BIA”), arguing that

his deportation was invalid because vehicular eluding is not an aggravated felony under

Sessions v. Dimaya, 138 S. Ct. 1204 (2018). The BIA dismissed his appeal as untimely.

       Flores filed a motion to dismiss the indictment in this case, arguing that because

vehicular eluding is not an aggravated felony under Dimaya, his deportation cannot be

the predicate for an illegal re-entry conviction. A magistrate judge recommended the

denial of his motion to dismiss because by failing to file a timely appeal of his 2012

removal order, Flores failed to exhaust administrative remedies under § 1326(d)(1). Over

Flores’ objections, the district court adopted the magistrate’s recommendation. Flores

pled guilty but retained the right to appeal the denial of his motion. The court sentenced

him to a term of 22 months’ imprisonment and three years of supervised release. Flores

appealed.

                                             II

       Flores raises a collateral attack to his prior deportation order. We review the legal

sufficiency of a prior removal order de novo. See United States v. Almanza-Vigil, 912

F.3d 1310, 1316 (10th Cir. 2019). Under § 1326(d), a defendant who collaterally attacks

                                             2
a prior deportation order during criminal proceedings must demonstrate “(1) that he

exhausted all administrative remedies available to contest the previous removal order,

(2) that the previous removal proceedings deprived him of the opportunity to seek

judicial review, and (3) that the previous order’s entry was fundamentally unfair.” Id.

(citing § 1326(d)). This appeal focuses on the first prong: the district court concluded

Flores had not exhausted administrative remedies because he failed to appeal the 2012

removal order.

       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).” United

States v. Chavez-Alonso, 431 F.3d 726, 728 (10th Cir. 2005). By not filing a timely

appeal to the immigration judge’s order of deportation, Flores waived his right to appeal.

See United States v. Arevalo-Tavares, 210 F.3d 1198, 1201 (10th Cir. 2000) (“Defendant

waived his right to appeal by failing to file a timely appeal . . . .”). Flores raises no

argument that this failure was not knowing; we therefore conclude that he failed to

exhaust administrative remedies. See Chavez-Alonso, 431 F.3d at 728.

       On appeal, Flores argues that he exhausted “his only viable administrative

remedy” by filing a notice of appeal after Dimaya. We disagree. Flores could have filed

a timely appeal, but he failed to do so. Instead, his notice of appeal was filed

approximately six years after the time for him to appeal expired. Filing an untimely

appeal does not remedy the failure to file a timely appeal. See Arevalo-Tavares, 210 F.3d

at 1201; cf. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) (“Proper exhaustion demands

compliance with an agency’s deadlines and other critical procedural rules because no

                                               3
adjudicative system can function effectively without imposing some orderly structure on

the course of its proceedings.”).

       Flores argues that it would have been futile for him to appeal the 2012 removal

order because vehicular eluding was an aggravated felony under binding precedent at the

time. But futility does not excuse a failure to exhaust when exhaustion is statutorily

required. See 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.”); Gilmore v. Weatherford, 694 F.3d 1160, 1169 (10th Cir. 2012)

(“[T]his court has explicitly rejected the proposition that it is futile to lodge an objection

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

the party’s position.” (quotation omitted)). Litigants are permitted to make good-faith

arguments for the extension, reversal, or modification of existing law—precisely the

kinds of arguments that Flores makes in this appeal.1 See Fed. R. Civ. P. 11(b)(2).

       Moreover, Flores has not established that vehicular eluding was an aggravated

felony under our binding precedent at the time of his removal in 2012. He cites only an

unpublished, non-binding decision, United States v. Atkins, 379 F. App’x 762 (10th Cir.

2010), in support of that proposition. Atkins addressed whether the Colorado crime of


       1
        Flores also cites United States v. Lopez-Urgel, 351 F. Supp. 3d 978, 990-91
(W.D. Tex. 2018), in which a district court concluded that a defendant was not
required to show administrative exhaustion when his arguments would have
contradicted the law at that time. Id. at 990-91. This directly contravenes Chavez-
Alonso, which we are bound to follow. See United States v. Lira-Ramirez, 951 F.3d
1258, 1260 (10th Cir. 2020) (“We must generally follow our precedents absent en
banc consideration.”).

                                               4
vehicular eluding constituted a crime of violence under a similar clause in the Sentencing

Guidelines. Id. at 764. It did not address whether vehicular eluding is an aggravated

felony under §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(F). Flores has not demonstrated that

a timely appeal of his 2012 removal order would have been futile.

       Relying on United States v. Johnson, 391 F.3d 67 (2d Cir. 2004), Flores also

argues that any failure to exhaust is excusable because the immigration judge at his

removal proceeding in 2012 told him that vehicular eluding was an aggravated felony.

He contends this was “constitutionally relevant misinformation.” In Johnson, the Second

Circuit held that “an alien’s failure to meet the requirement of § 1326(d)(1) would be

excusable where the alien waived the right to a BIA appeal and the waiver was premised

on misleading information provided by the [immigration judge] regarding the alien’s

eligibility for discretionary relief.” Id. at 75. But the immigration judge informed Flores

of his right to appeal. See id. at 75-76 (“[T]he fact that Johnson was informed of his right

to appeal weighs heavily against a finding that his waiver was not intelligent and

considered.”). Flores does not assert that he did not understand his right to appeal,

merely that he did not believe an appeal would be successful. The immigration judge’s

statement that vehicular eluding was an aggravated felony does not excuse Flores’ failure

to file a timely appeal.

       Finally, Flores urges us to reconsider Chavez-Alonso in light of the Ninth

Circuit’s rule that the exhaustion requirement is excused when an intervening change in




                                             5
the law causes a predicate conviction no longer to be an aggravated felony.2 But “[w]e

must generally follow our precedents absent en banc consideration.” Lira-Ramirez, 951

F.3d at 1260. Although “[a]n exception exists for intervening changes in our

precedents,” id. at 1261, Flores does not point to any such changes in this case. Chavez-

Alonso is binding.

          We conclude that because Flores failed to exhaust his administrative remedies in

connection with his 2012 removal, the district court correctly rejected his collateral

attack.

                                              III

          AFFIRMED.

                                               Entered for the Court


                                               Carlos F. Lucero
                                               Circuit Judge




          2
        Flores asserts that the Ninth Circuit set forth this rule in United States v.
Camacho-Lopez, 450 F.3d 928 (9th Cir. 2006). In that case, the government
conceded this argument, so the court did not directly address it. Id. at 930. But the
Ninth Circuit has since squarely held that an intervening change in the law excuses
the exhaustion requirement for a defendant collaterally attacking a prior removal
order. See, e.g., United States v. Ochoa, 861 F.3d 1010, 1015 (9th Cir. 2017).

                                               6
