United States v. Zuniga

── United States v. Zuniga ── Court: Court of Appeals for the Ninth Circuit Date: April 08, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 8 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 25-257 D.C. No. Plaintiff - Appellee, 8:21-cr-00072-DOC-1 v. MEMORANDUM* ELANO SERRANO ZUNIGA, AKA Elano Serrano, Appellant. Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding Argued and Submitted March 2, 2026 Pasadena, California Before: WARDLAW and DE ALBA, Circuit Judges, and BROWN, District Judge.** Elano Serrano Zuniga entered a conditional guilty plea to the charge of illegal reentry under 8 U.S.C. § 1326. He now appeals the district court’s denial of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jeffrey Vincent Brown, United States District Judge for the Southern District of Texas, sitting by designation. his motion to dismiss the indictment pursuant to 8 U.S.C. § 1326(d). Zuniga collaterally attacks the underlying removal order, arguing that ineffective assistance of immigration counsel rendered the proceedings fundamentally unfair and deprived him of meaningful judicial review within the meaning of § 1326(d). We have jurisdiction under 28 U.S.C. § 1291, and we vacate the judgment of conviction and reverse the denial of the motion to dismiss. 1. The district court correctly concluded that Zuniga satisfied § 1326(d)(1)’s administrative exhaustion requirement. A defendant exhausts available administrative remedies by appealing the immigration judge’s (“IJ”) decision to the Board of Immigration Appeals (“BIA”). See United States v. Palomar- Santiago, 593 U.S. 321, 327 (2021). Zuniga met this requirement by appealing the IJ’s removal order to the BIA. The government’s argument that Zuniga failed to exhaust administrative remedies because he did not raise ineffective assistance of counsel before the BIA is unpersuasive. Exhaustion of administrative remedies and issue exhaustion are analytically distinct. See Carr v. Saul, 593 U.S. 83, 88 n.2 (2021). Zuniga pursued the full administrative review process available to him and therefore satisfied § 1326(d)(1). 2. The district court erred in concluding that Zuniga failed to demonstrate that the removal proceedings improperly deprived him of the opportunity for judicial review under § 1326(d)(2). The government contends, and the district 2 25-257 court reasoned, that Zuniga cannot meet this requirement because he could have petitioned this court for review of the BIA’s decision but failed to do so. That argument overlooks the nature of Zuniga’s claim. Zuniga alleges ineffective assistance of counsel, a procedural defect that can functionally foreclose meaningful review. See United States v. Lopez-Chavez, 757 F.3d 1033, 1044 (9th Cir. 2014). Unlike the substantive immigration-law error at issue in United States v. Portillo-Gonzalez, 80 F.4th 910, 918 (9th Cir. 2023), which further review could have corrected, Zuniga’s claim concerns counsel’s failure to present and argue the only form of relief for which he was eligible: pre-conclusion voluntary departure. The same counsel continued representing Zuniga before the BIA and never raised the claim that he himself was constitutionally ineff