Tuesday, January 25, 2022

US v. Castellanos-Avalos, 20-30181 (1-18-22)(M. Smith w/Paez & Nguyen). This is a question of exhaustion. The 9th reversed the dismissal of the indictment charging the defendant with a 1326. The dismissal was based on failing to advise the defendant in immigration proceedings about voluntary departure. The 9th notes that under US v. Palomar-Santiago, 141 S. Ct 1615 (2021), a court may not “excuse” exhaustion of administrative remedies and that a defendant must meet all the statutory requirements under 1326(d). This calls into question the 9th’s framework. The panel, though, sidesteps the issue. Here, the defendant had sought judicial review and received it. There is no basis for dismissing the indictment for such a failure. 

The decision is here:



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