Fifth Circuit Reaffirms Strict Construction of 8 U.S.C. § 1326(d) and Rejects the “Later-Change-in-Law” Exception: United States v. Ortiz-Rodriguez

1. Introduction

In United States v. Ortiz-Rodriguez, Nos. 24-50213 & 24-50224 (5th Cir. July 23 2025), the Court of Appeals for the Fifth Circuit addressed whether a non-citizen prosecuted for illegal re-entry under 8 U.S.C. § 1326(a) could collaterally attack an underlying expedited removal order that had been predicated on a conviction later found not to be an aggravated felony. Defendant-Appellant Ismael Adan Ortiz-Rodriguez argued that because Supreme Court and Fifth Circuit precedent issued after his 2017 removal re-characterised his Texas “evading arrest with a vehicle” conviction as not an aggravated felony, his earlier waiver of judicial review was unknowing, involuntary, and therefore invalid under 8 U.S.C. § 1326(d). The district court denied the motion to dismiss the indictment, and the Fifth Circuit affirmed.

2. Summary of the Judgment

  • The panel (Richman, Willett, and Douglas, JJ.) held that Ortiz-Rodriguez did not satisfy § 1326(d)(2) because he was not deprived of the opportunity for judicial review. The court credited the signed Notice of Intent (Form I-851), which explicitly informed him of a 14-day window to seek review in the Fifth Circuit.
  • The court further held that § 1326(d)(3) was unmet because: (a) the 2017 procedures complied with due-process requirements, and (b) Ortiz-Rodriguez could not show prejudice; at the time of removal, Fifth Circuit precedent (United States v. Sanchez-Ledezma, 2011) deemed his conviction an aggravated felony.
  • Importantly, the Fifth Circuit explicitly rejected the Ninth Circuit’s rule in United States v. Valdivia-Flores that a later change in felony classification automatically invalidates the waiver of appeal.
  • Judge Douglas concurred in the judgment on prejudice grounds but penned a partial dissent on the deprivation-of-review and due-process analyses, signalling an intra-circuit debate.

3. Detailed Analysis

3.1 Precedents Cited

The court drew upon (and sometimes distinguished) an extensive line of cases:

  • United States v. Palomar-Santiago, 593 U.S. 321 (2021) – Supreme Court decision clarifying that the three requirements in § 1326(d) are conjunctive, mandatory, and sequential. A substantive error in the removal order does not excuse failure to meet the first two procedural prongs.
  • United States v. Mendoza-Lopez, 481 U.S. 828 (1987) – Foundational case establishing that an unconstitutional deportation proceeding may not serve as an element of a criminal offence; § 1326(d) later codified its holding.
  • United States v. Sanchez-Ledezma, 630 F.3d 447 (5th Cir. 2011) (abrogated by Dimaya) – At the time of Ortiz-Rodriguez’s removal, this case classified Texas evading-arrest-with-a-vehicle as an aggravated felony, undergirding the government’s contemporaneous analysis.
  • Sessions v. Dimaya, 584 U.S. 148 (2018) – Struck down 18 U.S.C. § 16(b)’s “crime of violence” residual clause as unconstitutionally vague, thereby toppling Sanchez-Ledezma.
  • Diaz Esparza v. Garland, 23 F.4th 563 (5th Cir. 2022) – Applied Dimaya to Texas evading arrest, confirming it is no longer an aggravated felony.
  • United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017) – Held that a defective aggravated-felony determination rendered the waiver of appeal unknowing; the Fifth Circuit declined to follow this reasoning.
  • Several circuit-specific procedural cases: Cordova-Soto, Benitez-Villafuerte, Hernandez Velasquez, Parrales-Guzman, among others, which collectively reinforce the Fifth Circuit’s rigorous evidentiary standard (defendant bears the burden of proving invalid waiver).

3.2 Legal Reasoning of the Panel Majority

  1. Textual Rigidity of § 1326(d) – The court reiterated that the statute’s three elements must be proven sequentially. Failure on any single prong ends the inquiry.
  2. Opportunity for Judicial Review – Because the I-851 form (Notice of Intent) explicitly informed Ortiz-Rodriguez of a 14-day period to petition the Fifth Circuit – and because he signed a waiver – the panel held there was no deprivation of review under § 1326(d)(2).
  3. Validity of Waiver – The Fifth Circuit presumes a signed waiver valid unless the defendant proves it was unknowing/involuntary. – Later legal developments (Dimaya) do not retroactively invalidate a waiver executed under then-settled law.
  4. Fundamental Unfairness & Prejudice – To satisfy § 1326(d)(3), an alien must show (a) procedural due process violation, and (b) a reasonable probability of a different outcome. – The panel found no procedural defect in the expedited removal process authorised by 8 U.S.C. § 1228(b) as construed in Benitez-Villafuerte. – Because prevailing law in 2017 mandated removal, any alleged error could not have changed the outcome, eliminating prejudice.
  5. Rejection of Ninth Circuit Approach – The court expressly disavowed Valdivia-Flores’s burden-shifting and automatic-prejudice framework, describing it as inconsistent with Fifth Circuit precedent and § 1326’s text.

3.3 Likely Impact of the Decision

  • Burden of Proof Cemented – Defendants in the Fifth Circuit must marshal affirmative evidence that a signed waiver was defective; mere citation to later jurisprudential shifts is insufficient.
  • Diminished Force of “Dimaya-type” Collateral Attacks – Non-citizens who were removed under pre-Dimaya precedent face nearly insurmountable hurdles when charged with illegal re-entry.
  • Inter-Circuit Tension – The Fifth Circuit’s divergence from the Ninth Circuit amplifies the circuit split on the scope of § 1326(d)(2) and (3), creating potential for Supreme Court intervention.
  • Practical Guidance to DHS – The opinion indirectly validates existing expedited-removal forms (I-851), signalling that no additional check-boxes or warnings are required in this circuit.
  • Sentencing & Supervised-Release Revocations – By affirming a 51-month sentence and a separate 14-month revocation term, the panel underscores that failed § 1326(d) attacks affect both new prosecutions and supervised-release consequences.

4. Complex Concepts Simplified

  • 8 U.S.C. § 1326(a) – The federal crime of returning to, or being found in, the United States after removal without permission.
  • 8 U.S.C. § 1326(d) – Allows a defendant to collaterally attack (i.e., challenge in the criminal case) the underlying removal order, but only if all three conditions are met: (1) administrative remedies exhausted; (2) proceedings improperly deprived the alien of judicial review; and (3) the entry of the order was fundamentally unfair (due process + prejudice).
  • Expedited Removal under § 1228(b) – A streamlined DHS process for non-citizens convicted of aggravated felonies, bypassing an immigration-judge hearing. The Notice of Intent (Form I-851) and Final Administrative Removal Order are the key documents.
  • Aggravated Felony – A term of art in immigration law covering dozens of offences. Classification triggers severe consequences (e.g., expedited removal, bar on relief). Post-Dimaya, certain state crimes once labelled aggravated felonies no longer qualify.
  • Waiver of Judicial Review – A signed acknowledgment that the alien does not wish to contest removal or file a petition for review. In the Fifth Circuit, such a waiver is presumed valid unless proven otherwise by clear evidence.
  • Prejudice Standard – The defendant must show a “reasonable likelihood” that, absent the alleged procedural error, the removal result would have differed (i.e., he would not have been removed).

5. Conclusion

United States v. Ortiz-Rodriguez fortifies the Fifth Circuit’s position that § 1326(d) is a narrow gateway: later jurisprudential corrections to substantive immigration law will not, by themselves, reopen that gate. The decision synthesises Supreme Court precedent (Palomar-Santiago), reiterates the defendant-centric burden to invalidate waivers, and distances the Fifth Circuit from the more lenient Ninth Circuit model. Practitioners should note that, within the Fifth Circuit, any collateral attack on an underlying removal order must be grounded in tangible procedural defects present at the time of removal, buttressed by evidence showing a plausible non-removable outcome. Mere reliance on subsequent changes in aggravated-felony jurisprudence will not suffice.