United States v. Alegeria-Saldana, No. 13-1607 (7th Cir. 2014)Annotate this Case
Saldana entered the U.S. at age 7, became a lawful permanent resident at 20, but was charged with removability at 34, in 2003, for committing an aggravated felony, 8 U.S.C. 1227(a)(2)(A)(ii), and a controlled-substance offense. He argued that mere possession of cocaine was not a drug-trafficking crime, and thus not an aggravated felony under 8 U.S.C. 1101(a)(43)(B) that would render him ineligible for discretionary relief. The IJ denied his application for cancellation of removal. Saldana did not appeal and was removed to Mexico. The agency precedent on which the IJ relied was overturned three years later by the Supreme Court. By then Saldana had reentered illegally and was again convicted of possessing cocaine. After his 2011 release Saldana was charged with illegal presence in the U.S. after removal, 8 U.S.C. 1326(a), (b)(1), but sought dismissal based on deficiencies in the underlying removal order. The district court denied the motion, finding that he had failed to exhaust administrative remedies; that his lawyer never promised to appeal; that Saldana did not take advantage of remedies available at the time (habeas corpus) and did not justify these failures other than asserting lack of legal knowledge; and that he could not show that removal was fundamentally unfair because he had no due-process right to apply for discretionary relief. The Seventh Circuit affirmed. Despite being informed of his rightsl, he did not file an appeal or ask his lawyer to do so, nor did he exhaust available remedies by a motion to reopen.