United States v. Palomar-Santiago, 593 U.S. ___ (2021)
Palomar-Santiago, a Mexican national living in the U.S, was convicted in California state court of felony DUI in 1988. Lower courts then understood that conviction to be an “aggravated felony” subjecting a noncitizen to removal, 8 U.S.C. 1227(a)(2)(A)(iii). Palomar-Santiago was removed following a hearing and a waiver of his right to appeal. In 2017, Palomar-Santiago was found in the U.S and indicted for unlawful reentry after removal. Section 1326, criminalizing unlawful reentry, provides that a collateral challenge to the underlying deportation order may proceed only if the noncitizen first demonstrates that “any administrative remedies that may have been available” were exhausted, “the opportunity for judicial review” was lacking, and “the order was fundamentally unfair.” Palomar-Santiago argued that his prior removal order was invalid in light of the 2004 “Leocal” holding, that felony DUI is not an aggravated felony. The Ninth Circuit affirmed the dismissal of the charges.
A unanimous Supreme Court reversed. Each of the statutory requirements of section 1326(d) is mandatory; defendants charged with unlawful reentry “may not” challenge their underlying removal orders “unless” they “demonstrat[e]” each of three conditions. The first two requirements are not satisfied just because a noncitizen was removed for an offense that should not have rendered him removable. An immigration judge’s error on the merits does not excuse the noncitizen’s failure to comply with a mandatory exhaustion requirement if further administrative review, and then judicial review if necessary, could fix that error. Section 1326(d) unambiguously forecloses Palomar-Santiago’s interpretation.
Noncitizens charged with unlawful reentry may not challenge their underlying removal orders without demonstrating exhaustion of administrative remedies and lack of opportunity for judicial review. An immigration judge’s error on the merits does not excuse a noncitizen’s failure to comply with those mandatory requirements.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. PALOMAR-SANTIAGO
certiorari to the united states court of appeals for the ninth circuit
No. 20–437. Argued April 27, 2021—Decided May 24, 2021
Respondent Palomar-Santiago, a Mexican national living in the United States, was convicted in California state court of felony DUI in 1988. At the time, lower courts understood that conviction to be an “aggravated felony” subjecting a noncitizen to removal from the United States. 8 U. S. C. §1227(a)(2)(A)(iii). Palomar-Santiago was removed following a hearing before an immigration judge and a waiver of his right to appeal. In 2017, Palomar-Santiago was found in the United States and indicted on one count of unlawful reentry after removal. See §1326(a). The statute criminalizing unlawful reentry provides that a collateral challenge to the underlying deportation order may proceed only if the noncitizen first demonstrates that (1) “any administrative remedies that may have been available” were exhausted, (2) “the opportunity for judicial review” was lacking, and (3) “the entry of the order was fundamentally unfair.” §1326(d). Palomar-Santiago moved to dismiss the indictment on the ground that his prior removal order was invalid in light of the 2004 holding in Leocal v. Ashcroft, 543 U.S. 1, that felony DUI is not an aggravated felony. Following Ninth Circuit precedent, the District Court and Court of Appeals held that Palomar-Santiago was excused from proving the first two requirements of §1326(d) because his felony DUI conviction had not made him removable. The District Court granted the motion to dismiss, and the Ninth Circuit affirmed.
Held: Each of the statutory requirements of §1326(d) is mandatory. Pp. 5–8.
(a) The Ninth Circuit’s interpretation is incompatible with the text of §1326(d), which provides that defendants charged with unlawful reentry “may not” challenge their underlying removal orders “unless” they “demonstrat[e]” each of three conditions. Section 1326(d)’s first two requirements are not satisfied just because a noncitizen was removed for an offense that should not have rendered him removable. The substantive validity of a removal order is quite distinct from whether the noncitizen exhausted administrative remedies or was deprived of the opportunity for judicial review. P. 5.
(b) Palomar-Santiago’s counterarguments are unpersuasive. First, he contends that further administrative review of a removal order is not “available” for purposes of §1326(a) when a noncitizen will not recognize a substantive basis to challenge an immigration judge’s conclusion that a prior conviction renders the noncitizen removable. The immigration judge’s error on the merits does not excuse the noncitizen’s failure to comply with a mandatory exhaustion requirement if further administrative review, and then judicial review if necessary, could fix that very error. Ross, 578 U.S. 632, distinguished.
Second, Palomar-Santiago contends that §1326(d)’s prerequisites do not apply when a defendant argues that a removal order was substantively invalid. There can be no “challenge” to or “collateral attack” on the validity of substantively flawed orders, he reasons, because such orders are invalid when entered. This position ignores the plain meaning of both “challenge” and “collateral attack.”
Lastly, Palomar-Santiago invokes the canon of constitutional avoidance. But this canon “has no application in the absence of statutory ambiguity.” United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 494. Here, the text of §1326(d) unambiguously forecloses Palomar-Santiago’s interpretation. Pp. 5–7.
813 Fed. Appx. 282, reversed and remanded.
Sotomayor, J., delivered the opinion for a unanimous Court.
JUDGMENT ISSUED. |
Conditional cross-motion for leave to file a supplemental brief after oral argument GRANTED. |
Motion for leave to file a supplemental brief after oral argument GRANTED. |
Judgment REVERSED and case REMANDED. Sotomayor, J., delivered the opinion for a unanimous Court. |
Judgment REVERSED and case REMANDED. Sotomayor, J., delivered the opinion for a unanimous Court. |
Motion to file a supplemental response brief after oral argument filed by petitioner United States. (Distributed) |
Conditional cross-motion for leave to file a supplemental brief after oral argument filed by petitioner United States. (Distributed) |
Motion for leave to file a supplemental brief after oral argument filed by respondent Refugio Palomar-Santiago. (Distributed) |
Motion for Leave to File Supplemental Brief After Oral Argument and Supplemental Brief of Refugio Palomar-Santiago submitted. |
Argued. For petitioner: Erica L. Ross, Assistant to the Solicitor General, Department of Justice, Washington, D. C. For respondent: Bradley N. Garcia, Washington, D. C. (Appointed by this Court.) |
Reply of petitioner United States filed. (Distributed) |
Brief amici curiae of The National Immigration Project, et al. filed. (Distributed) |
Brief amicus curiae of The National Association of Criminal Defense Lawyers filed. (Distributed) |
Brief amici curiae of Former Executive Office of Immigration Review Judges filed. (Distributed) |
Brief amici curiae of Professors Kelly Lytle Hernández, Mae Ngai, and Ingrid Eagly filed. (Distributed) |
CIRCULATED |
Brief amicus curiae of National Association of Federal Defenders filed. (Distributed) |
Brief of respondent Refugio Palomar-Santiago filed. |
Record requested. |
The record from the U.S.C.A. 9th Circuit is electronic and located on Pacer. |
SET FOR ARGUMENT on Tuesday, April 27, 2021. |
Brief amicus curiae of Immigration Reform Law Institute filed. |
Motion to dispense with printing the joint appendix filed by petitioner GRANTED. |
Motion to appoint counsel filed by respondent GRANTED, and Bradley N. Garcia, Esq., of Washington, D.C., is appointed to serve as counsel for respondent in this case. |
Brief of petitioner United States filed. |
DISTRIBUTED for Conference of 2/19/2021. |
Motion to appoint counsel filed by respondent Refugio Palomar-Santiago. |
Motion to dispense with printing the joint appendix filed by petitioner United States. |
Motion for leave to proceed in forma pauperis filed by respondent GRANTED. |
Petition GRANTED. |
DISTRIBUTED for Conference of 1/8/2021. |
Reply of petitioner United States filed. (Distributed) |
Motion for leave to proceed in forma pauperis filed by respondent Refugio Palomar-Santiago. |
Brief of respondent Refugio Palomar-Santiago in opposition filed. |
Motion to extend the time to file a response is granted and the time is extended to and including December 7, 2020. |
Motion to extend the time to file a response from November 5, 2020 to December 7, 2020, submitted to The Clerk. |
Petition for a writ of certiorari filed. (Response due November 5, 2020) |