Section 1326(d) Is Strictly Mandatory: Palomar-Santiago Abrogates Sosa’s “Invalid Waiver” Exception

1. Introduction

In United States v. Manuel Zumba Mejia (Second Circuit, Apr. 9, 2026), the Government appealed an order of the Southern District of New York dismissing an aggravated illegal reentry information under 8 U.S.C. §§ 1326(a) and (b)(2). The dismissal rested on a collateral attack against Mejia’s 2010 removal order.

The key issue was whether Mejia—who did not appeal his removal order to the Board of Immigration Appeals (BIA) and who expressly waived appeal—could nonetheless satisfy (or be excused from satisfying) the first two statutory prerequisites for collateral review in a § 1326 prosecution under 8 U.S.C. § 1326(d): (1) exhaustion of administrative remedies and (2) deprivation of the opportunity for judicial review.

The district court applied Circuit precedent beginning with United States v. Sosa, treating the immigration judge’s advisal about discretionary relief (voluntary departure) as rendering Mejia’s waiver not “knowing and intelligent,” and thus excusing §§ 1326(d)(1) and (2). The Second Circuit reversed, holding that the Supreme Court’s unanimous decision in United States v. Palomar-Santiago forecloses judicially created exceptions to § 1326(d)’s mandatory requirements— thereby abrogating Sosa and its progeny to the extent they permitted bypassing exhaustion and judicial-review requirements.

2. Summary of the Opinion

The Second Circuit held that § 1326(d)’s three requirements are conjunctive and mandatory, and that courts may not excuse a defendant’s failure to exhaust administrative remedies or to pursue available judicial review. Because Mejia neither appealed to the BIA nor sought any administrative or judicial review after being advised of his rights and expressly waiving appeal, he failed §§ 1326(d)(1) and (2). Even assuming arguendo that the removal proceeding was “fundamentally unfair” under § 1326(d)(3) due to misinformation about voluntary departure, that would not cure noncompliance with the first two requirements. The court therefore reversed the dismissal and remanded.

3. Analysis

A. Precedents Cited

  • United States v. Palomar-Santiago, 593 U.S. 321 (2021)

    This was the controlling authority. The Second Circuit treated Palomar-Santiago as a direct, irreconcilable conflict with the Circuit’s earlier approach. The Supreme Court’s core holdings—quoted and applied—were that § 1326(d)’s requirements are “mandatory,” that “a court may not excuse a failure to exhaust,” and that the conjunctive “and” requires a defendant to satisfy all three prongs. The Second Circuit adopted Palomar-Santiago’s insistence that administrative and judicial review are the mechanisms designed to correct even substantive legal errors by immigration judges, so an IJ’s merits error does not itself justify bypassing exhaustion.

  • United States v. Sosa, 387 F.3d 131 (2d. Cir. 2004)

    Sosa had recognized a “limited exception” excusing exhaustion where a waiver of administrative review was not “knowing and intelligent,” often linked to an IJ’s failure to advise about available relief. The Second Circuit here characterizes Sosa as best understood as statutory interpretation aimed at aligning § 1326(d) with Mendoza-Lopez. That reading matters because, once the Supreme Court declared the statutory text unambiguous in Palomar-Santiago, the statutory “gap” Sosa filled can no longer be filled by courts. The panel’s key doctrinal move is to hold Sosa “abrogated” insofar as it excused prongs (1) and (2).

  • United States v. Mendoza-Lopez, 481 U.S. 828 (1987)

    Mendoza-Lopez supplied the due process backdrop: when an administrative order is an element of a later criminal offense, due process requires “some meaningful review” and permits collateral challenge where defects “effectively eliminate” judicial review. The Second Circuit emphasizes that Mendoza-Lopez required only that some avenue of review exist; it did not mandate the particular judicially crafted exception that Sosa later recognized. This framing allows the panel to reconcile strict enforcement of § 1326(d) with due process: Congress codified a pathway for meaningful review, but defendants must use it.

  • United States v. Copeland, 376 F.3d 61 (2d Cir. 2004) and United States v. Calderon, 391 F.3d 370 (2d Cir. 2004)

    These cases extended and operationalized Sosa, treating failures to advise or affirmative misinformation about discretionary relief as “fundamental procedural error” and, importantly, as grounds to excuse compliance with § 1326(d)’s first two prongs. The panel groups them as part of “Sosa and its progeny” and holds that this approach cannot survive Palomar-Santiago. In effect, these precedents are treated as superseded to the extent they created a judicial escape hatch from statutory prerequisites.

  • United States v. Johnson, 391 F.3d 67 (2d Cir. 2004)

    Cited to underscore that § 1326(d) was “designed to carry out” Mendoza-Lopez rather than undermine it. The panel uses this to support its point that earlier Second Circuit decisions were engaged in statutory alignment, not the recognition of a free-floating constitutional exception that could override unambiguous statutory text.

  • United States v. Portillo-Gonzalez, 80 F.4th 910 (9th Cir. 2023)

    Offered as persuasive confirmation: on “nearly identical facts,” the Ninth Circuit held that Palomar-Santiago foreclosed collateral challenge even where an IJ misinformed the defendant about voluntary departure. The Second Circuit leverages this to show the emerging post-Palomar-Santiago consensus and to rebut the idea that “voluntary departure misinformation” is a special category.

  • United States v. Flores-Perez, 1 F.4th 454 (6th Cir. 2021); United States v. Castillo-Martinez, 16 F.4th 906 (1st Cir. 2021); United States v. Calan-Montiel, 4 F.4th 496 (7th Cir. 2021) (dicta); United States v. Nunez, 140 F.4th 1157 (9th Cir. 2025)

    These cases are cited to demonstrate that multiple circuits read Palomar-Santiago as eliminating equitable or judge-made exceptions to § 1326(d), including attempts to treat “fundamental unfairness” as effectively sufficient by itself. The Second Circuit’s alignment with this line signals that the post-2021 landscape is moving toward strict statutory compliance across circuits.

  • Ross v. Blake, 578 U.S. 632 (2016)

    Cited for the meaning of “available” in an exhaustion provision: “capable of use,” “accessible,” “may be obtained.” The panel uses Ross to reject Mejia’s alternative framing that administrative review was not “available” because he subjectively misunderstood eligibility for relief. The remedy (BIA appeal) existed and was usable; he knew of it and waived it.

  • Thapa v. Gonzalez, 460 F.3d 323 (2d Cir. 2006)

    Cited for a clear description of “voluntary departure” as discretionary relief that allows voluntary exit without a formal removal order. This concept is central because Mejia argued the IJ’s misadvice on voluntary departure undermined due process.

  • Blake v. Gonzales, 481 F.3d 152 (2d Cir. 2007) and Borden v. United States, 593 U.S. 420 (2021)

    These cases frame the substantive immigration-law dispute motivating the collateral attack. The opinion notes that, in 2010, the IJ’s advice that Mejia was ineligible for voluntary departure was correct under then-governing law (including Blake), because the prior conviction was treated as a “crime of violence” (and thus an aggravated felony), which barred voluntary departure. The later decision Borden changed the “crime of violence” landscape for reckless offenses. The panel’s key point, however, is procedural: even if Borden means the IJ’s eligibility assessment would be viewed as wrong today, that does not relax § 1326(d)’s mandatory exhaustion and review prerequisites.

B. Legal Reasoning

  1. Section 1326(d) provides the “sole mechanism” for collateral attack in a § 1326 prosecution.

    The court reiterates that because the prior removal order is an element of the criminal offense, Congress set a specific gatekeeping framework in § 1326(d) to balance due process with finality and efficiency.

  2. The panel treats the conflict between Sosa and Palomar-Santiago as irreconcilable.

    Sosa allowed courts to excuse exhaustion (and, by extension, deprivation-of-review requirements) where waiver was not knowing and intelligent. Palomar-Santiago says courts may not excuse failure to exhaust under mandatory statutory language. Under ordinary vertical stare decisis, the Supreme Court’s interpretation controls; therefore, the Second Circuit formally recognizes abrogation.

  3. “Fundamental unfairness” cannot be used as an end-run around prongs (1) and (2).

    Even if Mejia could establish § 1326(d)(3), the statute’s conjunctive structure requires him also to show exhaustion and deprivation of judicial review. The panel emphasizes that administrative review exists “precisely” to correct both procedural and substantive IJ errors.

  4. “Availability” is objective and functional, not subjective.

    Mejia’s attempt to recast his misunderstanding as “no available remedy” fails because he was told of the appeal right, had time to file, and nothing prevented him from doing so. The court’s reliance on Ross v. Blake underscores that a remedy’s availability depends on its accessibility and capacity to provide relief, not on a defendant’s choice not to use it.

C. Impact

  • Direct doctrinal change in the Second Circuit. The opinion announces that Sosa, Copeland, and Calderon can no longer be used to excuse §§ 1326(d)(1) and (2). District courts in the Circuit must apply § 1326(d) as a strict, three-prong gatekeeper, without equitable carve-outs tied to “invalid waiver” theories.

  • Practical effect on § 1326 defense strategy. Defendants will face a higher procedural bar to dismissal based on invalidity of the underlying removal order. Post-Borden (and other retroactive shifts in removability analysis), the critical question in criminal reentry cases becomes not only whether the prior removal was legally defective, but whether the defendant preserved avenues of review at the time (or qualifies under the statute’s strict prerequisites).

  • Systemic incentive to litigate in immigration proceedings. The decision reinforces Congress’s “one full and fair opportunity” model: challenges to removability and discretionary relief should be raised through administrative appeal and judicial review channels when available, not saved for collateral attack after reentry.

  • Convergence with other circuits. By citing cases from the First, Sixth, Seventh, and Ninth Circuits, the opinion situates the Second Circuit within a national, post-2021 consensus that § 1326(d) is rigidly enforced.

4. Complex Concepts Simplified

Illegal reentry (8 U.S.C. § 1326)
A federal crime that punishes reentering the United States without permission after having been removed/deported. The prior removal order typically serves as a key element the Government must prove.
Collateral attack (in a § 1326 prosecution)
An attempt to invalidate the earlier removal order within the criminal case—usually to undermine the “prior removal” element. Congress limited this through § 1326(d).
Section 1326(d)’s three requirements
A defendant may not challenge the prior order unless he proves: (1) he exhausted available administrative remedies; (2) the proceeding improperly deprived him of the opportunity for judicial review; and (3) entry of the order was fundamentally unfair. After this opinion, courts in the Second Circuit cannot excuse (1) or (2) based on equitable theories.
Exhaustion of administrative remedies
Using the agency’s review process first—here, appealing the IJ’s decision to the BIA—before turning to courts or collateral challenges. If an appeal path exists and is usable, it is generally “available.”
Voluntary departure
A discretionary form of relief permitting a noncitizen to leave voluntarily without a formal removal order. Eligibility can depend on criminal history, including whether a conviction is an “aggravated felony.”
“Crime of violence,” mens rea, and Borden
Whether an offense counts as a “crime of violence” can turn on the mental state required. Borden v. United States held that crimes with a mens rea of recklessness do not qualify as “violent felonies” under a relevantly identical definition, which can alter immigration consequences. This case shows that even when substantive law evolves, procedural preservation requirements in § 1326(d) remain controlling.
Constitutional avoidance
A canon advising courts to choose an interpretation that avoids constitutional problems when statutory text is ambiguous. The opinion notes that Palomar-Santiago rejected using avoidance where the statutory text is unambiguous, limiting earlier interpretive moves.

5. Conclusion

The Second Circuit’s decision establishes a clear, rule-like proposition for § 1326 prosecutions in this Circuit: after United States v. Palomar-Santiago, courts may not excuse noncompliance with § 1326(d)(1) or § 1326(d)(2), even where a defendant argues that an IJ’s advisals rendered a waiver not “knowing and intelligent,” and even if the removal proceeding could be characterized as “fundamentally unfair.”

The immediate significance is institutional: it formally displaces the Second Circuit’s two-decade-old Sosa-line exception and aligns the Circuit with the Supreme Court’s strict reading of § 1326(d). The broader significance is practical: collateral attacks in illegal reentry cases will increasingly turn on whether defendants actually used (or were truly denied) administrative and judicial review mechanisms at the time of removal, not merely on whether the IJ’s decision would be judged wrong under later-evolving law.