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Keywords

appealfelonyjudicial review
appealfelonyjudicial review

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Gil-Lopez; U.S. v.

Facts

Gil-Lopez, a native and citizen of Mexico, entered the U.S. in the late 1980s and became a lawful permanent resident in 2000. In 2002, he was convicted of a felony in Idaho and subsequently removed from the U.S. in 2004. After illegally reentering the U.S., he was indicted for unlawful presence. He moved to dismiss the indictment, claiming his removal was fundamentally unfair and that he did not knowingly waive his right to appeal the removal order.

Gil-Lopez, a native and citizen of Mexico, entered the U.S. in the late 1980s and became a lawful permanent resident in 2000. In 2002, he was convicted of a felony in Idaho and subsequently removed from the U.S. in 2004. After illegally reentering the U.S., he was indicted for unlawful presence. He moved to dismiss the indictment, claiming his removal was fundamentally unfair and that he did not knowingly waive his right to appeal the removal order.

Issue

Did Gil-Lopez knowingly and voluntarily waive his right to appeal the immigration court's 2004 removal order, and did he exhaust his administrative remedies as required by 8 U.S.C. 1326(d)?

Did Gil-Lopez knowingly and voluntarily waive his right to appeal the immigration court's 2004 removal order, and did he exhaust his administrative remedies as required by 8 U.S.C. 1326(d)?

Rule

To collaterally attack a prior removal order under 8 U.S.C. 1326(d), an alien must show that he exhausted his administrative remedies, was deprived of an opportunity for judicial review, and that the removal order was fundamentally unfair.

To collaterally attack a prior removal order under 8 U.S.C. 1326(d), an alien must show that he exhausted his administrative remedies, was deprived of an opportunity for judicial review, and that the removal order was fundamentally unfair.

Analysis

The court determined that Gil-Lopez provided no evidence to support his claim that he did not sign the withdrawal of his appellate rights knowingly and voluntarily. The evidence indicated that he waived his right to appeal the removal order, and thus he could not challenge it in his appeal from the indictment for unlawful reentry. The court found that the waiver issue was dispositive, making it unnecessary to address whether his prior conviction constituted an aggravated felony.

The court determined that Gil-Lopez provided no evidence to support his claim that he did not sign the withdrawal of his appellate rights knowingly and voluntarily. The evidence indicated that he waived his right to appeal the removal order, and thus he could not challenge it in his appeal from the indictment for unlawful reentry. The court found that the waiver issue was dispositive, making it unnecessary to address whether his prior conviction constituted an aggravated felony.

Conclusion

The court affirmed the district court's decision, concluding that Gil-Lopez waived his rights to appeal the immigration court's 2004 removal order and did not exhaust his administrative remedies.

The court affirmed the district court's decision, concluding that Gil-Lopez waived his rights to appeal the immigration court's 2004 removal order and did not exhaust his administrative remedies.

Who won?

The government prevailed because the court found that Gil-Lopez knowingly waived his right to appeal and failed to exhaust his administrative remedies.

The government prevailed because the court found that Gil-Lopez knowingly waived his right to appeal and failed to exhaust his administrative remedies.

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