U.S. v. Larios-Buentello

Record contained sufficient evidence to support defendant’s conviction on charge of illegal re-entry into U.S. after having been removed, even though defendant presented defense under 8 USC section 1326(d) that his original 1998 removal was fundamentally unfair because IJ at that time did not advise him that he would be eligible to seek discretionary relief from removal under section 212(c) of INA. Defendant failed to satisfy all three elements for said defense since: (1) defendant failed to appeal IJ’s removal order, and thus failed to show that he had exhausted any available administrative remedies; (2) defendant failed to show that he had been deprived of any opportunity for judicial review of original removal order; and (3) it was not fundamentally unfair to refrain from advising defendant to seek relief under section 212(c), where such relief would not have been available to defendant in month following his guilty plea.