## Facts

- Juan F. Adame-Orozco, a Mexican national and lawful permanent resident, lived in Kansas and accumulated multiple criminal convictions.
- In April 2005, he pleaded guilty in Kansas state court to two counts of selling cocaine.
- Immigration authorities initiated removal based on those convictions as aggravated felonies; an immigration judge (IJ) ordered removal.
- Adame-Orozco sought time to pursue a state-court motion to withdraw his guilty pleas (including an ineffective-assistance claim based on immigration consequences) and asked the IJ to delay removal.
- The IJ refused to continue the removal proceeding to await state collateral review; the Board of Immigration Appeals (BIA) dismissed his appeal, and he did not petition a federal court of appeals for review.
- A Kansas court later denied his motion to withdraw the guilty pleas; he was deported.
- After he was again found in Kansas, the United States charged him with attempted illegal reentry after deportation following an aggravated felony under 8 U.S.C. § 1326.
- He moved to dismiss the indictment by collaterally attacking the removal order under 8 U.S.C. § 1326(d); the district court denied the motion and he was convicted.

## Issues

1. Whether, under 8 U.S.C. § 1326(d)(2), removal proceedings “improperly deprived” Adame-Orozco of the opportunity for judicial review because the IJ did not delay removal to allow completion of a state-court collateral attack on the predicate convictions.
2. Whether § 1326(d) requires immigration authorities to stay removal while a defendant pursues state post-conviction review of convictions used as the basis for removal.
3. Whether the availability of BIA review and a petition for review in a federal court of appeals defeats a § 1326(d) collateral attack premised on pending state collateral proceedings.

## Decision

- The Tenth Circuit affirmed the denial of the motion to dismiss and affirmed the conviction.
- The court held Adame-Orozco could not satisfy § 1326(d)(2) because he was not improperly deprived of judicial review of the removal order: he appealed to the BIA and could have sought review in a federal court of appeals.
- The court rejected the claim that § 1326(d) guarantees time to litigate state collateral attacks on predicate convictions or requires a stay of removal while such challenges are pending.

## Legal Principles

- A defendant charged under 8 U.S.C. § 1326 may collaterally attack the prior removal order only by meeting all statutory prerequisites in § 1326(d), including showing that the removal proceedings improperly deprived him of the opportunity for judicial review.
- “Opportunity for judicial review” in § 1326(d)(2) refers to review of the federal removal order (administrative review and available federal court review), not to the chance to pursue state-court collateral review of predicate convictions.
- Immigration adjudicators may proceed on the basis of final state convictions as they exist at the time of removal; § 1326(d) does not require removal proceedings to be delayed to await potential vacatur or modification in state post-conviction litigation.
- A defendant’s failure to pursue available federal judicial review of the removal order generally defeats a claim that he was deprived of that opportunity under § 1326(d)(2).

## Conclusion

The Tenth Circuit held that § 1326(d) provides only a narrow avenue to collaterally challenge a removal order in an illegal reentry prosecution and does not require immigration courts to postpone removal to allow state post-conviction challenges to predicate convictions; because Adame-Orozco had access to BIA review and federal appellate review of the removal order, his collateral attack failed.


United States v. Adame-Orozco, 607 F.3d 647 (10th Cir. 2010)