Fourth Circuit: § 1326(d) Exhaustion Requires Timely, Lozada-Compliant Presentation of Ineffective-Assistance Claims to the BIA

Case: United States v. Melvin Mauricio Valencia Gil (4th Cir. July 9, 2026) (published)

I. Introduction

This Fourth Circuit decision addresses when a noncitizen indicted for illegal reentry under 8 U.S.C. § 1326 may collaterally attack the validity of the prior removal order that serves as the indictment’s predicate. The defendant, Melvin Mauricio Valencia Gil, argued that his removal order was “unlawful” because immigration counsel filed his appeal to the Board of Immigration Appeals (“Board” or “BIA”) late—purportedly depriving him of meaningful review.

The central issue was not whether counsel performed deficiently, but whether Valencia satisfied the statutory gateway for collateral challenges, 8 U.S.C. § 1326(d), specifically the requirement that he exhaust “any administrative remedies that may have been available to seek relief against the order.” The court held that where the claimed reason for non-exhaustion is ineffective assistance of counsel, the noncitizen must timely present that ineffective-assistance claim to the immigration tribunal with jurisdiction, in substantial compliance with the BIA framework established by Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).

II. Summary of the Opinion

The Fourth Circuit affirmed the denial of Valencia’s motion to dismiss his § 1326 indictment. Although counsel filed an untimely BIA appeal and submitted a motion asking the Board to accept it, Valencia did not properly exhaust administrative remedies because he did not present an ineffective-assistance claim to the BIA in a manner that substantially complied with Matter of Lozada. The court emphasized that exhaustion is mandatory under § 1326(d), and failure to satisfy even one element defeats a collateral attack.

Concretely, the court held that the motion to accept the untimely appeal—supported by counsel’s affidavit blaming his own “inability” to send paperwork—did not alert the Board that an ineffective-assistance claim was being made and did not include key Lozada components (client affidavit describing the agreement; notice to counsel and opportunity to respond; and disciplinary-complaint information). Because the BIA was never afforded a proper opportunity to consider the ineffective-assistance claim, the § 1326(d)(1) exhaustion prong was not met, and the court did not reach the remaining § 1326(d) requirements.

III. Analysis

A. Precedents Cited

1. United States v. Alas, 63 F.4th 269 (4th Cir. 2023)

United States v. Alas supplied the appellate standard of review: clear error for factual findings and de novo for legal conclusions when reviewing denial of a motion to dismiss an indictment based on a § 1326(d) collateral attack. This framing mattered because the Fourth Circuit treated the exhaustion question as a legal issue and reviewed it without deference.

2. United States v. Castro-Aleman, 141 F.4th 576 (4th Cir. 2025)

United States v. Castro-Aleman did two key jobs. First, it reiterated that all three § 1326(d) requirements are mandatory and that “[f]ailure on even one” is fatal. Second, it recognized an important qualification: administrative remedies can be deemed “unavailable” when “procedural irregularities” prevent exhaustion—yet the court in Valencia Gil carefully confined that concept. The opinion treated “unavailability” not as a free-floating equitable excuse, but as something that must itself be grounded in, and presented through, the administrative process when the alleged procedural flaw is ineffective assistance.

3. Roe v. Flores-Ortega, 528 U.S. 470 (2000)

Roe v. Flores-Ortega was cited for the widely accepted principle that it is professionally unreasonable for an attorney to fail to file an appeal once directed by the client. Valencia relied on that logic to argue that counsel’s failure should excuse exhaustion. The Fourth Circuit did not reject the general proposition; instead, it held that even if counsel’s failure could constitute a procedural flaw, the ineffective-assistance premise must be properly raised to the BIA to satisfy § 1326(d)(1).

4. Cabrera v. Barr, 930 F.3d 627 (4th Cir. 2019)

Cabrera v. Barr reinforced the Fourth Circuit’s insistence that arguments not presented to the BIA are unexhausted and, in the petition-for-review context, outside the court’s jurisdiction. Valencia Gil imported that administrative-law logic into the § 1326(d) collateral-attack setting: the BIA must be given the first opportunity to consider the ineffective-assistance claim.

5. Zuniga v. Garland, No. 20-2015, 2021 WL 5492806 (4th Cir. Nov. 23, 2021)

Although unpublished, Zuniga v. Garland was “orally argued” and was used to illustrate the circuit’s consistent approach: the court cannot consider an ineffective-assistance claim—or excuse exhaustion based on ineffective assistance in BIA proceedings—when that ineffective-assistance claim was not presented to the BIA in the first instance. Valencia Gil effectively elevates that approach into a published, binding statement in the § 1326(d) context.

6. Barry v. Gonzales, 445 F.3d 741 (4th Cir. 2006)

Barry v. Gonzales did the most doctrinal work. It established that to exhaust an ineffective-assistance claim administratively, the noncitizen must follow Matter of Lozada, and it clarified that the Fourth Circuit does not apply Lozada “mulishly”: substantial compliance may suffice if it allows the BIA to determine the claim is non-frivolous and not asserted merely to delay removal. Valencia Gil applied Barry’s “substantial compliance” standard but found the record fell well short.

7. Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988)

Matter of Lozada provided the operative procedural framework. The Fourth Circuit treated these steps as the mechanism by which the BIA is put on notice of an ineffective-assistance claim and given a developable factual record. The court’s holding is functionally a notice-and-record rule: if the BIA is not alerted that the issue is “ineffective assistance,” and the Lozada indicia are absent, exhaustion is not satisfied.

8. Castillo-Perez v. INS, 212 F.3d 518 (9th Cir. 2000)

Castillo-Perez v. INS was cited for the purpose behind Lozada: ensuring an adequate factual basis and deterring frivolous or delay-motivated ineffectiveness complaints. This supported the Fourth Circuit’s conclusion that Valencia’s bare “inability” affidavit did not give the BIA what it needed to vet the claim.

9. Peer-circuit and additional authority noted in the footnote

In a footnote, the court observed that several circuits consider a motion to reopen the proper vehicle to raise ineffective assistance after the BIA has decided an appeal, citing United States v. Castillo-Martinez, 16 F.4th 906 (1st Cir. 2021) and Puga v. Chertoff, 488 F.3d 812 (9th Cir. 2007). It also referenced unpublished Fourth Circuit decisions, Degu v. Holder, 583 F. App'x 214 (4th Cir. 2014) and again Zuniga v. Garland. Importantly, the court explicitly declined to decide whether a motion to accept an untimely appeal could ever suffice in lieu of a motion to reopen, because Valencia’s filing did not substantially comply with Lozada.

B. Legal Reasoning

  1. Section 1326(d) is a mandatory gateway. The court began from the statutory structure: a collateral attack on a removal order underlying a § 1326 prosecution requires proof of all three § 1326(d) elements. Under United States v. Castro-Aleman, failure on any single element ends the case.
  2. “Unavailability” of remedies is narrow when the excuse is ineffective assistance. The court accepted the general principle that procedural flaws can render administrative remedies “unavailable.” But it held that when the alleged flaw is ineffective assistance, the noncitizen must first present that ineffective-assistance claim through the administrative system—because the BIA must have the chance to correct the error, develop facts, and apply its own standards.
  3. Exhaustion requires Lozada (with substantial compliance). Relying on Barry v. Gonzales, the court treated Matter of Lozada as the established pathway for raising ineffectiveness to the BIA. The court emphasized it does not demand rigid, technical perfection (“mulishly”), but it does require enough compliance to put the BIA on notice and permit a non-frivolousness assessment.
  4. Valencia’s filing failed to communicate an ineffective-assistance claim. The motion to accept the late appeal did not:
    • include Valencia’s affidavit describing his agreement with counsel;
    • state whether counsel was notified and given an opportunity to respond;
    • indicate whether a bar/disciplinary complaint was filed or explain why not;
    • expressly claim “ineffective assistance of counsel” or reference Lozada.
    While counsel’s affidavit admitted fault (“inability to send paperwork”), the court treated that as insufficient to trigger an ineffectiveness inquiry by the BIA without the Lozada framework and an explicit claim. The result: the BIA “was never afforded a proper opportunity to consider” ineffective assistance, so § 1326(d)(1) was not met.
  5. Disposition without reaching other § 1326(d) elements. Because exhaustion failed, the court did not address whether Valencia was deprived of judicial review or whether the removal order was fundamentally unfair.

C. Impact

The opinion’s practical rule is clear: in the Fourth Circuit, a § 1326 defendant who claims his failure to exhaust (for example, an untimely BIA appeal) was caused by ineffective assistance must first present that ineffective-assistance claim to the BIA in a manner that substantially complies with Matter of Lozada. Without that administrative presentation, the defendant cannot use ineffective assistance as the “procedural flaw” that excuses exhaustion under § 1326(d)(1).

Likely consequences include:

  • Defense strategy in illegal-reentry cases: counsel will need to build a record showing Lozada compliance (often via a motion to reopen) if the collateral attack is premised on ineffective assistance during removal proceedings.
  • Greater procedural discipline in removal litigation: noncitizens (and later criminal defense counsel) must treat Lozada steps as more than formalities; they are the key to preserving a later § 1326(d) challenge.
  • Clarified limits of “unavailability”: the court signals that “remedy unavailability” will not be lightly inferred when the asserted barrier is counsel error; the administrative system must be asked to address counsel error first.
  • Open question preserved: the court did not decide whether a motion to accept an untimely appeal could ever substitute for a motion to reopen as the vehicle for an ineffective-assistance claim, but it strongly implied that, at minimum, Lozada-type notice and record development must be present.

IV. Complex Concepts Simplified

Collateral attack (in a § 1326 case)
An attempt, during a criminal prosecution for illegal reentry, to invalidate the earlier removal order that the government relies on as an element/predicate of the offense.
Exhaustion of administrative remedies
The requirement that a person first use the procedures available within the agency (here, immigration procedures before the BIA) to raise errors and seek relief before turning to federal court.
Board of Immigration Appeals (BIA/“the Board”)
The administrative appellate tribunal within the Department of Justice that reviews immigration judge (IJ) decisions.
Motion to reopen
A request to the immigration tribunal to reopen a completed case to consider new evidence or claims (often including ineffective assistance), frequently used to create a factual record and allow the agency to correct errors.
Matter of Lozada requirements
A BIA framework for bringing ineffective-assistance claims: typically includes a client affidavit describing the agreement and alleged failures, notice to prior counsel with an opportunity to respond, and information about a disciplinary complaint (or an explanation for not filing one). The point is to ensure reliability, non-frivolousness, and an adequate record.
“Substantial compliance”
The Fourth Circuit does not demand perfect adherence to every technical detail, but it does require enough compliance that the BIA can recognize the claim, evaluate it, and determine it is not frivolous or purely dilatory.
Deferral of removal under the Convention Against Torture (CAT)
A form of protection that can prevent removal to a particular country if the person is likely to face torture there; it does not necessarily confer lawful immigration status.

V. Conclusion

United States v. Valencia Gil establishes (and, in published form, solidifies) a procedural prerequisite for § 1326(d) collateral attacks in the Fourth Circuit: when the defendant’s theory for excusing non-exhaustion is ineffective assistance of immigration counsel—such as a late-filed BIA appeal—the defendant must have timely presented that ineffective-assistance claim to the BIA with substantial compliance with Matter of Lozada. A filing that merely explains tardiness, without clearly raising ineffective assistance and without the Lozada indicia that allow the BIA to assess legitimacy, will not satisfy § 1326(d)(1). Because exhaustion is mandatory and independently dispositive, the court affirmed without reaching whether the removal order was fundamentally unfair or whether Valencia was deprived of judicial review.