Appeal from the United States District Court for the Southern District of New York

ARGUED: FEBRUARY 10, 2026 DECIDED: APRIL 9, 2026

Before: CABRANES, SULLIVAN, Circuit Judges , and GONZALEZ, District Judge . *

Page 2The United States of America appeals from an October 29, 2024 order of the United States District Court for the Southern District of New York (Vincent L. Briccetti, Judge ) granting Defendant-Appellee Manuel Zumba Mejia’s motion to dismiss a criminal information. The Government filed a timely notice of appeal on November 25, 2024, invoking this Court’s jurisdiction pursuant to 18 U.S.C. § 3731.

The Government charged Mejia by complaint with aggravated illegal reentry, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Section 1326(d), in turn, provides that a defendant charged with illegal reentry 'may not challenge the validity of' his prior deportation order “unless” that defendant satisfies three statutory requirements. Relying on the law of the Circuit established in United States v. Sosa , 387 F.3d 131 (2d. Cir. 2004), the District Court first held that Mejia’s original deportation proceeding was fundamentally unfair under § 1326(d)(3) because the immigration judge misled him in violation of due process by incorrectly stating he was ineligible for voluntary departure. The District Court then concluded that Mejia had effectively satisfied §§ 1326(d)(1) and (2) because his failure to appeal resulted from the immigration judge’s misleading statements, rendering his waiver of appeal not knowing and intelligent.

The Supreme Court has settled this matter otherwise, holding unanimously in United States v. Palomar-Santiago , 593 U.S. 321 (2021), that § 1326(d)’s requirements are “mandatory,” and that “a court may not excuse a failure to exhaust,” id. at 326, 329. This holding squarely abrogates our prior rule under Sosa and its progeny, which had Page 3permitted defendants to bypass § 1326(d)’s exhaustion and deprivation-of-judicial-review requirements. Bound as we are by the judgments of the Supreme Court, we hold that Mejia was barred from collaterally challenging his underlying removal order because he failed to satisfy those requirements, and the statute does not permit a court to excuse that failure.

Accordingly, we REVERSE the district court's order granting Mejia's motion to dismiss and REMAND for further proceedings consistent with this opinion.

MICHAEL D. MAIMIN (Jorja N. Knauer, on the brief ), Assistant United States Attorneys, for JAY CLAYTON, United States Attorney for the Southern District of New York, Appellant .

SARAH BAUMGARTEL, Federal Defenders of New York, Inc. Appeals Bureau, for DefendantAppellee .

JOSÉ A. CABRANES , Circuit Judge :

The Reentry of Removed Aliens Act, codified at 8 U.S.C. § 1326, makes it a felony for a noncitizen who has been previously deported Page 4to reenter the United States without authorization. To secure a conviction, the Government must prove a defendant was previously removed from the country—a fact usually conclusively established by an order of removal from a prior administrative proceeding before an Immigration Judge ('IJ'). A defendant can, however, collaterally attack the validity of the original removal order to rebut the satisfaction of that element. Finally, because the prior removal order serves as an element of the criminal offense, subsection (d) of the statute provides the sole mechanism by which a defendant may collaterally attack its validity in the context of a reentry prosecution.²

We recognized in United States v. Sosa , 387 F.3d 131 (2d. Cir. 2004), a limited exception that excuses a defendant from these requirements when a defendant’s waiver of administrative review was not 'knowing and intelligent.'³ Since that decision, the Supreme Court held in United States v. Palomar-Santiago , 593 U.S. 321 (2021), that all three requirements set forth in § 1326(d) are mandatory for a defendant to meet before he may collaterally challenge his underlying Page 5removal order, and that no court may excuse a defendant’s failure to satisfy any one of them.⁴

Today we consider whether the Supreme Court's decision in Palomar-Santiago abrogates our prior interpretation of § 1326(d) in Sosa . We hold that it does. The conflict between Sosa and Palomar-Santiago is irreconcilable: Sosa held that courts may excuse a failure to exhaust; Palomar-Santiago holds that they may not. Our prior rule is therefore abrogated.⁵

In this case, the Government appeals from an October 29, 2024 order of the United States District Court for the Southern District of New York (Vincent L. Briccetti, Judge ) applying Sosa and granting Defendant-Appellee Manuel Zumba Mejia’s motion to dismiss.

Mejia, a native and citizen of Ecuador, entered the United States without lawful authority around 1999. In 2009, he was arrested for shaking his infant daughter and pleaded guilty to reckless assault of a child under N.Y. Penal Law § 120.02, for which he was sentenced to three years imprisonment.

Page 6On September 7, 2010, Mejia appeared before an IJ who advised him of his right to counsel at no government expense and asked whether he wanted time to find a lawyer. Mejia declined. Mejia indicated he wanted 'voluntary departure,'⁶ but the IJ told him he was ineligible “because of [his] crime” and, because he was imprisoned, he could not 'actually leave whenever [he] would want.'⁷

The IJ instead offered Mejia deportation. Mejia responded “[T]hat is what I want, to be deported back to my country. I don’t want to be here.' Id. The IJ granted this request. During the proceeding, Mejia confirmed that he understood his right to counsel and to appeal; he also acknowledged that he had received a list of free attorneys, as well as the requisite immigration forms. When asked specifically whether he accepted the decision to be deported or wished to appeal, Mejia responded by accepting the decision and expressly waived his Page 7right to appeal.⁸ He was removed to Ecuador on September 23, 2011, more than a year after his removal proceeding.

About ten years later, Mejia returned to the United States from Ecuador without obtaining the “express[] consent[]” of the Attorney General or the DHS Secretary to reapply for admission. 9 On October 3, 2021, Mejia was arrested in Westchester County, New York for driving while intoxicated. Then, on December 15, 2022, the Government charged Mejia by complaint with aggravated illegal reentry, in violation of 8 U.S.C. § 1326(a) & (b)(2). 10 Based on that complaint, Mejia was arrested on January 5, 2023, and on May 2, 2024, Page 8he waived indictment and was charged by Information with one count of aggravated illegal reentry. He pleaded not guilty.

Mejia moved to dismiss the Information, collaterally challenging his removal order from September 2010.¹¹ He argued that due to an intervening Supreme Court decision of 2021, Borden v. United States , his 2009 conviction for shaking his infant daughter—to which he had pleaded guilty in 2010-did not qualify as a 'crime of violence.'¹² Because that conviction was not a crime of violence, Mejia contended, he actually had been eligible for voluntary departure at the time of his September 2010 removal proceedings, making the IJ's failure to properly advise him of that eligibility a due process violation.

It is undisputed that Mejia failed to exhaust one of the administrative remedies available to him in 2010, namely, an appeal to the Board of Immigration Appeals (“BIA”). See 8 U.S.C. § 1326(d)(1). Following his 2010 removal proceeding, Mejia sought no type of Page 9review, either administrative or judicial, and was removed about one year later, in September 2011.¹³ He argued that his failure to exhaust should be excused because in 2010 the IJ failed to advise him of his eligibility for voluntary departure, rendering his appeal waiver not knowing and intelligent.

The Government, in its Opposition to the Defendant’s Motion to Dismiss, contended that Mejia's collateral challenge was barred because he clearly failed to satisfy all three mandatory requirements of § 1326(d), and that Palomar-Santiago did not allow a court to excuse that failure.¹⁴

Relying on the law of the Circuit established in Sosa , the District Court granted Mejia’s motion due to a fundamental procedural error and accompanying prejudice under § 1326(d)(3). The Court found it undisputed that Mejia had the right to appeal his removal order to the BIA; that the IJ repeatedly advised him of this right; and that Mejia had Page 10expressly declined each time. The Court also determined that, following the original removal hearing, nothing had prevented Mejia from pursuing that remedy. Nevertheless, relying on this Circuit's precedent and the exception established in Sosa , 15 the Court excused Mejia's failure to appeal because the IJ's advice, based on the IJ's understanding of the law in 2010, rendered Mejia's waiver not “knowing and voluntary,” such that Mejia “did not fully comprehend the nature of the proceeding.'¹⁶

In reaching this conclusion, the District Court rejected the Government's primary argument that Palomar-Santiago abrogated Sosa and its progeny. The Court instead reasoned that Palomar-Santiago was 'a purely statutory decision' that declined to reach constitutional arguments.¹⁷ According to the District Court, nothing in PalomarSantiago vitiated the requirement 'for an exception to [§ 1326(d)'s] exhaustion requirement if a prior proceeding violated due process guarantees.' 18

The Government timely appealed.

Page 11Titled 'Reentry of Removed Aliens,'⁸ U.S.C. § 1326 was initially enacted as part of the Immigration and Nationality Act of 1952, 19 which consolidated and codified federal immigration law. In its original form, the statute made it a felony for a deported alien to reenter the United States without authorization, carrying a maximum penalty of two years’ imprisonment. These administrative proceedings under the immigration law naturally offer fewer procedural protections than criminal trials, although their outcomes can serve as the basis for criminal liability. This tension raised due process concerns that the Supreme Court addressed in 1987 in United States v. Mendoza-Lopez . 20 There, the Court held 'that where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding.'²¹ It further concluded that the statute would not comport with due process if it allowed a criminal conviction for illegal reentry to rest on a deportation order obtained through fundamentally unfair Page 12proceedings.²² Where defects in the proceeding foreclose such review, a collateral challenge must be permitted in the criminal case itself.

Critically, however, Mendoza-Lopez mandated only that some alternative means of review must exist. The decision did not detail the minimum due process requirements of such alternative means, nor did it specify a course of action. The basic holding of Mendoza-Lopez was merely that a constitutional violation would be found where an IJ permitted waivers of the right to appeal that were not “considered or intelligent” and failed to advise aliens of their eligibility for discretionary relief.²³

In 1996, Congress enacted § 1326(d) to codify the Supreme Court’s holding. The statute establishes specific requirements that a defendant must satisfy to mount a collateral attack on a prior deportation order when that order serves as a predicate element of an illegal reentry charge under which the defendant is currently being prosecuted.²⁴ Thus, § 1326(d) permits a collateral challenge to a prior removal order only where the defendant establishes that (1) he had exhausted available administrative remedies; (2) he was deprived of the opportunity for judicial review; and (3) the underlying removal Page 13order was fundamentally unfair.²⁵ In enacting this statutory scheme, Congress sought to balance the due process concerns recognized in Mendoza-Lopez against the need to prevent defendants from reflexively challenging their deportation orders as a matter of course. Put simply, Congress sought to guarantee each defendant one full and fair opportunity to challenge a removal order. But neither Mendoza-Lopez nor § 1326 entitles a defendant who neglected the remedies available to him a second opportunity to challenge that order collaterally in a later criminal proceeding.

Following the 1996 amendments to § 1326, our Circuit, and others, grappled with what the statute meant in practice. Our response came in Sosa, which held that for § 1326(d) to be 'consistent' with Mendoza-Lopez , '[§ 1326's] exhaustion requirement must be excused where an alien’s failure to exhaust results from” a “misunderstanding” or “lack of understanding” about the availability of relief.²⁶ Thus, under Sosa , an IJ's failure to advise an alien of available relief excused § 1326(d)(1)'s exhaustion requirement.²⁷ We also recognized that “an invalid waiver of the right to administrative exhaustion will often result from the same lack of understanding that renders a waiver of judicial review invalid.'²⁸ But Sosa can be best understood as a statutory interpretation case. We read § 1326(d) to be Page 14consistent with Congress’s purpose in enacting it—namely, to codify Mendoza-Lopez . 29 That is an exercise in statutory interpretation, not constitutional analysis. And it would not make sense to read Sosa as incorporating a constitutional requirement from Mendoza-Lopez that Mendoza-Lopez itself never articulated.³⁰

The same year we decided Sosa , we considered two additional cases, United States v. Copeland 31 and United States v. Calderon , 32 that further explained what was essentially a specific exception to § 1326(d)'s mandatory requirements. Together, Sosa , Copeland , and Calderon concluded that where an IJ failed to advise an alien of a potential basis for discretionary relief from removal, or affirmatively Page 15misinformed him, we would excuse compliance with all of § 1326(d)’s requirements.

That was the state of the law in this Circuit until 2021, when the Supreme Court rejected an analogous approach by the Ninth Circuit in Palomar-Santiago . 33 There, the Court considered whether defendants were excused from satisfying the first two requirements of § 1326(d) where the underlying removal was based on a conviction that did not actually render him removable. Writing for a unanimous Court, Justice Sotomayor explained that they were not, and that “[t]he Ninth Circuit's interpretation is incompatible with the text of § 1326(d).'³⁴ The Court reasoned, in no uncertain terms, that “[w]hen Congress uses mandatory language in an administrative exhaustion provision, a court may not excuse a failure to exhaust.'³⁵ The Court further underscored that § 1326(d)'s requirements are connected by the conjunctive “and,” meaning defendants must meet all three statutory requirements.³⁶ Rejecting any distinction between procedural and substantive errors on the part of the IJ, the Court emphasized that “[a]dministrative review of removal orders exists precisely so Page 16noncitizens can challenge the substance of immigration judges’ decisions.'³⁷ Accordingly, an 'immigration judge's error on the merits does not excuse the noncitizen’s failure to comply with a mandatory exhaustion requirement if further administrative review, and then judicial review if necessary, could fix that very error.'³⁸ In short, the Court clearly held that '[e]ach of the statutory requirements of § 1326(d) is mandatory'-a conclusion that several of our sister circuits have taken seriously.³⁹

Here, it is undisputed that Mejia never appealed his initial removal order to the BIA, notwithstanding the fact that an administrative appeal was “available” to him. He therefore failed to exhaust his administrative remedies as required by § 1326(d)(1). And because the IJ correctly informed Mejia of his right to appeal—which Page 17Mejia expressly waived—he was not “deprived . . . of the opportunity for judicial review' under § 1326(d)(2). Even assuming that the IJ's erroneous statement about voluntary departure rendered Mejia's removal proceedings “fundamentally unfair” under § 1326(d)(3), that error did not excuse Mejia’s independent failure to satisfy §§ 1326(d)(1) and (2)—requirements that the statute does not permit a court to excuse.⁴⁰ Put differently, Mejia was required to satisfy all three statutory requirements to qualify for § 1326(d)'s exception; because Mejia failed to do so, “he remains subject to § 1326(d)’s general rule that he 'may not challenge the validity' of his predicate removal order.'⁴¹

Page 18To summarize, we hold:

1. (1) Palomar-Santiago abrogated Sosa and its progeny insofar as those cases excused defendants from satisfying the mandatory requirements of §§ 1326(d)(1) and (2); and
2. (2) Mejia did not satisfy §§ 1326(d)(1) and (2) because he failed to exhaust his administrative remedies and expressly waived his right to appeal. He is therefore barred from collaterally challenging his underlying removal order.

Accordingly, we REVERSE the order of the District Court dismissing the Information and REMAND for further proceedings consistent with this opinion.