United States of America v. HOMERO RUIZ-CALDERON, AKA Homero Calderon-Ruiz, AKA Homero Ruiz

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HOMERO RUIZ-CALDERON, AKA
Homero Calderon-Ruiz, AKA Homero Ruiz,
Defendant-Appellant.
No. 22-30099
D.C. No. 2:20-cr-00032-WFN-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding
Submitted March 26, 2024**
Before: TASHIMA, SILVERMAN, and KOH, Circuit Judges.
Homero Ruiz-Calderon appeals his conviction, following a conditional
guilty plea, for being an alien in the United States after deportation, in violation of
8 U.S.C. § 1326. He argues that the district court erred by denying his motion to
dismiss the indictment. We have jurisdiction under 28 U.S.C. § 1291, and we
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAR 29 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 22-30099
affirm.
A defendant charged with a criminal offense under § 1326 may challenge his
underlying removal order only if he “exhausted any administrative remedies that
may have been available to seek relief against the order.” 8 U.S.C. § 1326(d)(1).
Ruiz-Calderon, who waived his administrative appeal of his removal order,
contends that he can nevertheless challenge it because the immigration judge
(“IJ”)’s incorrect advisement concerning his right to voluntary departure rendered
his waiver invalid. We recently rejected this precise argument, holding that an
administrative appeal is “available” to a defendant within the meaning of
§ 1326(d)(1) even if the IJ’s statements regarding voluntary departure affected the
defendant’s understanding of the value of an appeal. See United States v. Portillo-
Gonzalez, 80 F.4th 910, 919-20 (9th Cir. 2023). Because Ruiz-Calderon did not
file such an appeal, he did not exhaust his administrative remedies and was
accordingly precluded from challenging his underlying removal order. See id. at
920; see also United States v. Palomar-Santiago, 593 U.S. 321, 329 (2021)
(“[E]ach of the statutory requirements of § 1326(d) is mandatory.”).
AFFIRMED.

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