Introduction

In United States v. Cortez-Zepeda, No. 24-50418 (5th Cir. July 10, 2025), the Fifth Circuit confronted a familiar, yet still unsettled, aspect of immigration-criminal crossover litigation: when, and how, an undocumented non-citizen charged under 8 U.S.C. § 1326 for illegal re-entry may collaterally attack the validity of the prior removal order on which the prosecution relies.

The defendant, Andis Noe Cortez-Zepeda, a Honduran national, sought dismissal of his § 1326 indictment by arguing that his 2015 administrative removal was void because—under binding Fifth Circuit precedent—his underlying Texas conviction for sexual assault was not an “aggravated felony.” He additionally claimed the Notice of Intent and accompanying waiver were misleading, not provided in a language he understood, and therefore deprived him of an opportunity for judicial review.

The Court of Appeals affirmed the conviction. Adopting a per curiam opinion against a vigorous dissent by Judge Dennis, the panel crystallized two guiding principles for future § 1326 litigation within the Fifth Circuit:

1. When DHS produces a written, signed waiver and stipulation to removal, the defendant bears the burden of proving the waiver invalid under the three-prong test of 8 U.S.C. § 1326(d).
2. Even if the underlying conviction might later be found not to qualify as an aggravated felony, that fact alone does not satisfy § 1326(d)(2)’s “deprivation of judicial review” requirement when the defendant voluntarily waived appellate review referenced in the Notice.

The decision thus tightens the door on collateral challenges in the Fifth Circuit and underscores the weight courts will place on paperwork executed in administrative proceedings.

Summary of the Judgment

The panel ruled as follows:

• Standard of Review: De novo review of the district court’s denial of a motion to dismiss the § 1326 indictment.
• Burden Allocation: In line with United States v. Hernandez Velasquez, once the Government produces a signed waiver, the burden shifts to the defendant to satisfy § 1326(d).
• § 1326(d) Analysis: Cortez-Zepeda failed to show:
  • (2) “deprivation of judicial review” – the Notice explicitly referenced 8 U.S.C. § 1252 and allowed 14 days to petition; he checked the box waiving it;
  • (3) “fundamental unfairness” – no procedural due-process violation was proven, and any misclassification of the prior conviction was immaterial in the absence of a deprived review opportunity.
• Result: The conviction and 27-month sentence stand; the motion to dismiss was properly denied.

Judge Dennis dissented, arguing the waiver was not “knowing, voluntary, and intelligent” because the form was misleading, signed in English within seconds, and contrary to Fifth Circuit precedent (Rodriguez v. Holder) already holding the offense not aggravated.

Analysis

1. Precedents Cited

• United States v. Hernandez Velasquez, 120 F.4th 1294 (5th Cir. 2024) – Established that once the Government provides a signed waiver, the defendant must invalidate it under § 1326(d). This case supplied the backbone for burden allocation.
• United States v. Palomar-Santiago, 593 U.S. 321 (2021) – The Supreme Court clarified that a non-citizen must satisfy all three § 1326(d) prongs even if the removal order was substantively wrong. The panel leaned on Palomar-Santiago to dismiss the relevance of whether Texas sexual assault is an aggravated felony.
• Rodriguez v. Holder, 705 F.3d 207 (5th Cir. 2013) – Binding authority holding generic Texas sexual assault not categorically an aggravated felony. Cited chiefly by the dissent; majority deemed it immaterial to the judicial-review prong.
• United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017) – Ninth-Circuit case finding similar DHS form insufficient to produce a valid waiver; invoked by the dissent to illustrate circuit split.

2. Legal Reasoning of the Court

The majority proceeded stepwise:

1. Authenticity Presumption: In the absence of contrary evidence, the Court presumed Cortez-Zepeda filled out, understood, and signed the waiver. Unsupported statements of “no recollection” were inadequate.
2. Application of § 1326(d): Because DHS produced a signed form, the defendant had to establish all three statutory elements. The Court focused on the second element—deprivation of judicial review—holding that:
   “Whether DHS improperly classified the conviction as an aggravated felony is immaterial to whether he was deprived of judicial review.”
   The waiver explicitly referenced the right to file a petition for review under 8 U.S.C. § 1252. By checking the box waiving that right, the defendant voluntarily relinquished it.
3. Knowledge Aspect: The majority declined to decide whether a non-knowing waiver would relieve the exhaustion and review requirements because, on these facts, knowledge was presumed. Without evidence to the contrary, the waiver stood as knowing, voluntary, intelligent.

3. Impact of the Decision

a. On § 1326 Litigation
The ruling fortifies the Fifth Circuit’s stringent interpretation of § 1326(d). Defendants must marshal concrete evidence—affidavits, expert linguists, contemporaneous records—if they hope to rebut a signed waiver. Merely positing that the form was misleading, or that precedent has shifted, will not suffice.

b. On Administrative Removal Practices
DHS can expect its one-page “Notice of Intent / 24-Hour Form” (Form I-851) to withstand challenge so long as it contains a statutory citation to § 1252 and the respondent signs the waiver. The Fifth Circuit will not require the form itself to enumerate all potential legal challenges.

c. On Circuit Splits
By refusing to follow the Ninth Circuit’s reasoning in Valdivia-Flores, the Fifth Circuit deepens an inter-circuit division regarding:

• Which party bears the burden of proving the validity of a waiver;
• Whether a boiler-plate reference to § 1252 is adequate notice of legal rights.

Should the Supreme Court seek to harmonize immigration collateral-attack jurisprudence, this split provides a ripe vehicle.

d. On Substantive-vs-Procedural Error
The decision underscores that in the Fifth Circuit, procedural infirmities (lack of notice, lack of opportunity) rather than substantive misclassifications will determine success in § 1326(d) collateral challenges.

Complex Concepts Simplified

• Aggravated Felony: A term of art in immigration law covering various crimes; conviction triggers harsh immigration consequences. Whether a state offense fits the definition is assessed via the “categorical” or “modified categorical” approach.
• Administrative Removal (8 U.S.C. § 1228): A streamlined DHS process for non-citizens convicted of aggravated felonies; no immigration-judge hearing is required.
• Waiver: A knowing, voluntary, and intelligent relinquishment of a right—in this context, the right to challenge removal or seek judicial review.
• Collateral Attack: An indirect challenge to a prior judgment (here, the removal order) raised as a defense in a later proceeding (the illegal-reentry prosecution).
• § 1326(d) Three-Prong Test:
  1. Exhaustion of administrative remedies;
  2. Deprivation of judicial review;
  3. Fundamental unfairness (due-process violation plus prejudice).
• Circuit Split: Divergent legal interpretations among federal appellate courts. Here, the Fifth and Ninth Circuits disagree on waiver validity standards.

Conclusion

United States v. Cortez-Zepeda cements a defendant-unfriendly stance in the Fifth Circuit: a signed DHS waiver is presumptively valid, and the onus is on the non-citizen to prove otherwise with concrete evidence. The panel’s refusal to intertwine substantive misclassification with procedural deprivation signals that administrative errors, however egregious, will not undo a removal order in a later § 1326 prosecution unless the defendant first establishes a flawed process.

Practitioners should therefore treat administrative removal paperwork with utmost seriousness at the time of execution—securing translations, legal advice, and preserving objections—because once a waiver is signed, later challenges face a near-insurmountable burden in the Fifth Circuit.

Whether the Supreme Court will ultimately reconcile the circuit divide regarding waiver validity remains to be seen, but until then, Cortez-Zepeda stands as a potent reminder: in the Fifth Circuit, procedure reigns supreme over substance when it comes to collateral attacks on prior removals.