Fifth Circuit Re-Affirms Strict Compliance with 8 U.S.C. § 1326(d) for Collateral Attacks on Expedited Removal Orders Despite Subsequent Changes in Aggravated-Felony Law

I. Introduction

In United States v. Ortiz-Rodriguez, Nos. 24-50213 & 24-50224 (5th Cir. July 23 2025), the United States Court of Appeals for the Fifth Circuit confronted a recurring post-Dimaya problem: may a non-citizen, prosecuted for illegal re-entry under 8 U.S.C. § 1326(a), invalidate the underlying 2017 expedited removal order when the state conviction that triggered that removal has since been declared not an “aggravated felony”? Mr. Ismael Adan Ortiz-Rodriguez argued that because Texas “evading arrest with a vehicle” is no longer an aggravated felony, his 2017 removal was void, his waiver of appeal was unknowing, and the resulting § 1326 indictment had to be dismissed pursuant to § 1326(d). The panel (Richman, Willett, and Douglas, JJ.) affirmed the district court’s refusal to dismiss the indictment, holding that:

1. Later changes in substantive criminal-immigration law do not excuse a defendant from satisfying each of the three statutory prerequisites in § 1326(d).
2. A signed “Notice of Intent to Issue a Final Administrative Removal Order” (Form I-851) that informs the alien of the 14-day/30-day window to seek judicial review is ordinarily sufficient to establish a knowing and voluntary waiver—even if the check-boxes list only factual grounds to contest deportability.
3. Because Ortiz-Rodriguez neither sought administrative/judicial review nor demonstrated prejudice, his collateral attack fails.

II. Summary of the Judgment

The court evaluated each prong of § 1326(d):

• § 1326(d)(1) – Exhaustion: Not reached because prongs (2) and (3) were dispositive.
• § 1326(d)(2) – Deprivation of Judicial Review: The defendant had an avenue to the Fifth Circuit under 8 U.S.C. § 1252(a)(2); his signature on the I-851 constituted a valid waiver. The burden rests on the alien to prove the waiver invalid; he did not meet it.
• § 1326(d)(3) – Fundamental Unfairness: (a) Due process: expedited-removal procedures in 8 U.S.C. § 1228(b) are facially valid; no officer misconduct was shown. (b) Prejudice: because in 2017 Fifth Circuit precedent (Sanchez-Ledezma) treated the evading-arrest offense as an aggravated felony, he was then removable; therefore, even without the alleged procedural errors, the outcome would have been identical.

The court expressly rejected the Ninth Circuit’s contrary standard (Martinez, Valdivia-Flores) that would have deemed both prongs (2) and (3) satisfied whenever the predicate conviction is later found not to be an aggravated felony. Judge Douglas concurred in part but dissented from this aspect, arguing that the waiver was not intelligent and that removal via expedited proceedings premised on a mis-categorized felony inherently violates due-process.

III. Analysis

A. Precedents Cited and Their Influence

• United States v. Palomar-Santiago, 593 U.S. 321 (2021) – Supreme Court held all three § 1326(d) requirements are mandatory; later legal invalidity of removal ground does not waive them. The Fifth Circuit treated Palomar-Santiago as controlling.
• United States v. Mendoza-Lopez, 481 U.S. 828 (1987) – Recognized constitutional right to minimal collateral review where removal precludes judicial review; Congress codified it in § 1326(d). The Fifth Circuit reiterated the statute is coterminous with Mendoza-Lopez.
• United States v. Sanchez-Ledezma, 630 F.3d 447 (5th Cir. 2011) (overruled post-Dimaya) – At the time of the 2017 removal, it deemed Texas evading-arrest a “crime of violence.” Critical to the court’s “no prejudice” finding.
• Sessions v. Dimaya, 584 U.S. 148 (2018) & Diaz Esparza v. Garland, 23 F.4th 563 (5th Cir. 2022) – Later clarified that the offense is not an aggravated felony. Court held that this post-hoc clarification does not retroactively create § 1326(d) relief.
• Fifth Circuit intra-circuit: Cordova-Soto (2015), Cortez-Zepeda (2025), Benitez-Villafuerte (1999) – establish burden-shifting and validity of written waivers.
• Out-of-circuit divergence: Ninth Circuit’s Valdivia-Flores, 876 F.3d 1201 (2017) (notice inadequate); First Circuit’s Soto-Mateo, Third Circuit’s Charleswell. The Fifth Circuit expressly rejected the Ninth Circuit rationale, deepening the circuit split.

B. The Court’s Legal Reasoning

1. Statutory Text Controls: Using plain language and Supreme Court guidance, each conjunctive clause of § 1326(d) must be met; courts may not graft equitable exceptions.
2. Validity of the Waiver: A signed I-851 (in English, no interpreter needed) reflected that Ortiz-Rodriguez:
   • understood his right to counsel;
   • knew of a 14-day stay and 30-day petition window;
   • affirmatively waived those rights.
   The burden to prove coercion or misunderstanding lies with the defendant, and no counter-evidence (illiteracy, confusion, threats) was presented.
3. Due Process is Procedural, Not Substantive: Even if the legal ground for deportability evaporates later, the original proceeding is not “fundamentally unfair” if procedures were facially valid and properly carried out.
4. Prejudice Is Time-Locked: Courts measure “reasonable likelihood of a different result” at the time of removal; predictions cannot rely on future doctrinal shifts.
5. Refusal to Follow Ninth Circuit: The Fifth Circuit reasoned that the Ninth’s burden-shifting (government must prove waiver) and automatic satisfaction of § 1326(d) when convictions are later de-aggravated undermines Congressional design and Palomar-Santiago.

C. Likely Impact of the Decision

1. Practical Barrier to Post-Dimaya Challenges: Non-citizens in the Fifth Circuit who were removed under expedited procedures based on pre-Dimaya “crimes of violence” face an almost insurmountable hurdle when later indicted for illegal re-entry.
2. Circuit Split Deepens: The sharp rejection of Valdivia-Flores enhances the conflict between the Fifth and Ninth Circuits on:
   • whether a defective aggravated-felony premise automatically proves due-process & prejudice, and
   • who bears the burden to establish waiver validity.
   A petition for certiorari in a future case is now more likely.
3. Guidance for Practitioners: Defense counsel must build a factual record (language barriers, lack of explanation, coercion) to attack the waiver itself; merely citing new caselaw is insufficient.
4. DHS Form Design Incentive: Although the panel found the existing I-851 adequate, Judge Douglas’s partial dissent and the court’s emphasis on clarity may push DHS to add an explicit “other legal grounds” check-box or explanatory language to forestall future litigation.
5. Sentencing Consequences: Because the panel upheld a 51-month sentence (with a 14-month supervised-release revocation), this decision also signals that lengthy sentences for repeat illegal re-entry offenders remain sustainable post-Dimaya.

IV. Complex Concepts Simplified

• Expedited Removal (8 U.S.C. § 1228(b)): A streamlined administrative process for deporting non-citizens convicted of aggravated felonies without a hearing before an immigration judge.
• Illegal Re-Entry (§ 1326(a)): A federal crime punishable up to two years (or more under § 1326(b)) for any alien previously deported who re-enters or is found in the U.S. without permission.
• Collateral Attack (§ 1326(d)): A narrow statutory vehicle allowing the defendant in a criminal re-entry case to challenge the legality of the prior removal which is an element of the offense.
• Aggravated Felony: A term of art in immigration law covering numerous serious offenses; conviction triggers mandatory removal and bars most relief. Post-Dimaya, some state crimes once swept in are now out.
• Fundamental Unfairness & Prejudice: “Fundamental unfairness” has two subparts—procedural due process and prejudice. Prejudice asks whether, at the time of removal, a different legal route could realistically have saved the individual from deportation.
• I-851 Notice of Intent: A two-page DHS form initiating expedited removal; it contains boxes to admit/contest allegations and a statement of appeal rights.

V. Conclusion

United States v. Ortiz-Rodriguez reinforces the Fifth Circuit’s high bar for collateral attacks on removal orders underpinning § 1326 prosecutions. Even dramatic shifts in the definition of an “aggravated felony” do not, standing alone, unlock § 1326(d) relief. Defendants must still prove that procedure—not substance—was defective and that, in real time, the outcome would likely have differed. The court’s refusal to follow Ninth Circuit precedent widens an existing circuit split and signals that Supreme Court intervention may eventually be necessary to harmonize national standards. For now, within the Fifth Circuit, a signed waiver on Form I-851 will ordinarily defeat claims that judicial review was denied, and a previously valid aggravated-felony designation will preclude findings of prejudice, no matter how the law has evolved since.