Whether a defendant satisfies 8 U.S.C. § 1326(d)(1)-(2) when their removal order appeal waiver was not considered and intelligent

In United States v. Mendoza-Lopez , 481 U.S. 828, 838-41 (1987), this Court held that an illegal-reentry defendant has a due process right to colla terally attack the removal order underlying his prosecutio n where defects in the immigration proceeding effectively foreclosed judicial review of that order. Applying this constitutional principle, this Court continued to hold that a noncitizen’s waiver of their right to appeal must be “considered” and “intelligent”; this standard is not met when an immigration judge fails to proper ly advise about eligibility for relief; and the noncitizen’s invalid appeal waiver re nders direct review (i.e., administrative appeal) “unavailable” and amounts to a de privation of judicial review. Congress subsequently enacted 8 U.S.C. § 1326(d) to codify Mendoza-Lopez and collateral attacks to removal orders. The question presented is: Under Mendoza-Lopez , does a defendant satisfy § 1326(d)(1) (requiring only the exhaustion of “available” administrative remedies) and § 1326(d)(2) (requiring a deprivation of the opportunity for judicial review) when the defendant’s waiver of their righ t to appeal their removal proceeding was not considered and intelligent? ii RULE 14.1(b) STATEMENT (i) All parties to the proceed ing are listed in the caption. (ii) The petitioner is not a corporation. (iii) The following are dire ctly-