Background
Melvin Mauricio Valencia Gil, a noncitizen, was ordered removed to El Salvador in 2020 after an immigration judge denied his application for deferral of removal. Valencia instructed his attorney to appeal the order, but the attorney failed to file the notice of appeal within the deadline. Valencia later reentered the United States and was indicted for illegal reentry. He moved to dismiss the indictment, arguing that his attorney’s failure to file the appeal constituted ineffective assistance of counsel that deprived him of judicial review. The district court denied the motion, finding that Valencia had not exhausted his administrative remedies because he did not properly present his ineffective-assistance claim to the Board of Immigration Appeals.
The court’s reasoning
The court explained that under Section thirteen twenty-six of Title eight of the United States Code, a noncitizen must exhaust administrative remedies to challenge a removal order. While procedural irregularities like attorney negligence can sometimes render remedies unavailable, the noncitizen must still present the claim of ineffective assistance to the Board to satisfy the exhaustion requirement. The court found that Valencia did not substantially comply with the Matter of Lozada requirements, which mandate an affidavit describing the agreement with counsel, notice to counsel, and disclosure of disciplinary complaints. Because Valencia failed to present his claim to the Board, he could not collaterally challenge the deportation order.
Because Valencia failed to exhaust his administrative remedies, he cannot collaterally challenge the validity of the deportation order underlying his illegal-reentry indictment.
United States v. Valencia Gil, 25-4176 (4th Cir. July 9, 2026)
What it means going forward
The decision reinforces that noncitizens facing illegal reentry charges must actively pursue ineffective-assistance claims through the Board of Immigration Appeals using the specific Lozada framework, even when their counsel was negligent.