Manuel Zumba Mejia, an Ecuadorian citizen who entered the United States illegally around 1999, was arrested in 2009 for shaking his infant daughter and pleaded guilty to reckless assault of a child under New York law, receiving a three-year prison sentence. During his 2010 removal proceeding before an immigration judge, Mejia requested voluntary departure but was told he was ineligible 'because of [his] crime.' The judge instead offered deportation, which Mejia accepted, saying '[T]hat is what I want, to be deported back to my country. I don't want to be here.' He expressly waived his right to appeal and was removed to Ecuador in September 2011.
After illegally reentering the United States and being charged with aggravated illegal reentry in 2022, Mejia moved to dismiss the case, arguing that a 2021 Supreme Court decision in Borden v. United States meant his assault conviction was not actually a 'crime of violence,' making him eligible for voluntary departure in 2010. U.S. District Judge Vincent L. Briccetti of the Southern District of New York granted the motion, finding the immigration judge's incorrect advice about voluntary departure rendered Mejia's appeal waiver not 'knowing and intelligent' under Second Circuit precedent in United States v. Sosa. As Cabranes wrote, '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.'
The Second Circuit delivered its most forceful language in explaining why the Supreme Court's ruling controls: 'When Congress uses mandatory language in an administrative exhaustion provision, a court may not excuse a failure to exhaust,' Cabranes wrote, quoting Palomar-Santiago. The court emphasized that the statute's requirements are connected by the conjunctive 'and,' meaning 'defendants must meet all three statutory requirements' to challenge a removal order collaterally.
The case originated from the Government's appeal of Judge Briccetti's October 29, 2024 order applying the now-abrogated Sosa precedent. Under that line of cases dating to 2004, the Second Circuit had recognized 'a limited exception that excuses a defendant from [Section 1326(d)'s] requirements when a defendant's waiver of administrative review was not knowing and intelligent.' The district court had reasoned that Palomar-Santiago was 'a purely statutory decision' that didn't eliminate constitutional due process protections, but the Second Circuit flatly rejected this interpretation.
The Government had argued throughout that Mejia's challenge was barred because he 'clearly failed to satisfy all three mandatory requirements of § 1326(d)' and that Palomar-Santiago prohibited courts from excusing such failures. The Second Circuit agreed, noting that it was 'undisputed that Mejia never appealed his initial removal order to the BIA, notwithstanding the fact that an administrative appeal was available to him.' As the court explained, '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).'
The decision aligns the Second Circuit with its sister circuits that have already grappled with Palomar-Santiago's impact on immigration law. The Ninth Circuit reached the same conclusion in United States v. Portillo-Gonzalez, 'holding that Palomar-Santiago foreclosed a defendant's collateral challenge where the IJ had misinformed him about his eligibility for voluntary departure.' Other circuits have similarly interpreted the Supreme Court's ruling as eliminating judicial discretion to excuse statutory exhaustion requirements.
The case now returns to Judge Briccetti for further proceedings on the underlying illegal reentry charge. For immigration defense practitioners, the ruling marks the definitive end of the Second Circuit's more lenient approach to collateral challenges, requiring defendants to satisfy all three statutory prerequisites under Section 1326(d) without exception, regardless of procedural errors by immigration judges during removal proceedings.