Whether an invalid waiver of appeal in an immigration removal proceeding automatically renders administrative remedies unavailable for purposes of the exhaustion requirement under 8 U.S.C. § 1326(d)(1)

and undersigned counsel’s need for additional time to prepare a petition that will assist the Court in deciding whether to grant certiorari. A. Background 1. Generally, it is unlawful for a noncitizen who has been removed from the United States to reenter the country without permission. 8 U.S.C. § 1326(a). As this Court has explained, though, “a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review.” United States v. Mendoza-Lopez, 481 U.S. 828, 839 (1987). Section 1326(d) permits defendants to bring such a collateral challenge. To do so, defendants must demonstrate that: (1) they “exhausted any administrative remedies that may have been available to seek relief against the [removal] order”; (2) the removal proceedings “improperly deprived [them] . . . of the opportunity for judicial review”; and (3) “the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d). If each requirement is met, the challenged removal order cannot be used to establish any element of an illegal reentry offense. United States v. PalomarSantiago, 593 U.S. 321, 326 (2021); see Mendoza-Lopez, 481 U.S. at 839-40. 2. Calderon was found in the United States in August 2019. A few months later, a grand jury in the Central District of California returned an indictment against him. He was charged with one count of being a noncitizen who, after removal, was found in the United States in violation of Section 1326(a). Calderon moved to dismiss the indictment under Section 1326(d). He argued that his underlying removal proceeding violated due process, and that he satisfied Section 1326(d)’s and requirements because his appeal waiver was invalid. The government opposed, and the district court denied relief. 3. On appeal, Calderon argued that the district court erred in denying his motion to dismiss the indictment. As relevant here, Calderon maintained that, because his appeal waiver was invalid, any administrative remedies were “unavailable” for purposes of Section 1326(d)(1). The Ninth Circuit affirmed. Before briefing was complete in Calderon’s case, the Ninth Circuit precedentially held that an invalid waiver of appeal does not render administrative remedies unavailable for purposes of Section 1326(d)(1). United States v. Nunez Sanchez, 140 F.4th 1157, 1162-65 (9th Cir. 2025). Instead, the defendant’s case must fit “within the exceedingly narrow set of circumstances in which a failure to exhaust may be excused” under Ross v. Blake, 578 U.S. 632 (2016). See Nunez Sanchez, 140 F.4th at 1165. For instance, as one “extreme example[],” a failure to exhaust administrative remedies may be excused when the defendant is “actively misled as to the rights available to him.” Jd. (emphasis in original). Calderon acknowledged that Nunez Sanchez was binding on the three-judge panel in his case and reserved his right to seek further appellate review. B. Importance of the Question Presented Calderon’s certiorari petition will present an important legal question concerning Section 1326(d). This Court has long held that an invalid waiver of the right to appeal an immigration judge’s decision renders administrative remedies unavailable for purposes of Section 1326(d)(1)’s exhaustion requirement. See Mendoza-Lopez, 481 U.S. at 840-41 (explaining that “[t]he Immigration Judge permitted waivers of the right to appeal that were not the result of considered judgments by respondents,” and that “[t]he fundamental procedural defects of the deportation hearing in this case rendered direct review of the Immigration Judge’s determination unavailable to respondents”). The Ninth Circuit now holds to the contrary: in Nunez Sanchez, it reasoned that the invalidity of a noncitizen’s waiver of appeal to the Board of Immigration Appeals was itself insufficient to satisfy Section 1326(d)(1). 140 F.4th at 1165 (concludi