Whether a motion to reopen is an administrative remedy that must be pursued before challenging the validity of an in absentia removal order under 8 U.S.C. § 1326(d)

QUESTION PRESENTED After a non-citizen is removed, 8 U.S.C. § 1326(a) criminalizes his return without authorization. A non-citizen charged with illegally re-entering the United States can challenge the validity of the removal order, but must “demonstrate|[] that” he “exhausted any administrative remedies that may have been available to seek relief against the order” and that “the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review.” 8 U.S.C. § 1326(d)(1)-(2). Once a removal order is entered in absentia, a non-citizen cannot appeal to the Bureau of Immigration Appeals. See 8 U.S.C. § 1229a(b)(5)(C); In re Guzman, 22 1. & N. Dec. 722, 723 (BIA 1999). The only mechanism available to non-citizens to revisit that order is to file a motion to reopen. 8 U.S.C. § 1229a(b)(5)(C). A motion to reopen an in absentia removal proceeding is available “at any time” only if the non-citizen can demonstrate either that he “did not receive notice in accordance with paragraph (1) or (2) of section 1229(a),” or that he “was in Federal or State custody and the failure to appear was through no fault of’ his own. 8 U.S.C. § 1229a(b)(5)(C). This case presents two questions: (1) Whether a motion to reopen is an administrative remedy that “may have been available to seek relief against” an in absentia removal order, which a noncitizen must have pursued before challenging the validity of the order under 8 U.S.C. § 1326(d)? (2) Whether a motion to reopen is an “available” remedy when the non-citizen was never provided actual notice of the hearing, never received information about how to administratively challenge the in absentia removal order, did not have the information necessary to file a motion to reopen, and would have been barred from filing a motion to reopen after his removal. ii