Whether a defendant charged with illegal reentry into the United States may challenge the validity of his removal order solely by showing that his crime is no longer a removable offense, even if he has failed to satisfy the procedural requirements for challenging the validity of a removal order during the original proceedings?
The case asks the Court to determine whether a defendant can challenge the validity of a removal order for unlawful reentry solely by showing that the order was based on a criminal conviction that is no longer a removable offense without having to meet the procedural requirements of demonstrating administrative exhaustion and no opportunity for judicial review. Respondent Refugio Palomar-Santiago was removed in 1998 for a DUI, and in 2001, DUIs were re-classified as a nonremovable offense. Palomar-Santiago was then found living in the United States in 2017 and was charged with unlawful reentry by Petitioner United States. Palomar-Santiago asserts, as a defense, that the original removal order was unlawful. The United States contends that Palomar-Santiago cannot challenge the validity of the original removal order absent the procedural requirements of administrative exhaustion and judicial review of the original order. Palomar-Santiago counters that procedural rights should not obstruct substantive rights, and that he should be able to challenge the legality of the removal order even absent judicial review. The Supreme Court’s decision in this case will implicate immigration procedure and the ability of noncitizens to challenge unlawful removal orders.
Questions as Framed for the Court by the Parties
Whether a defendant, charged with unlawful reentry into the United States following removal, automatically satisfies the prerequisites to asserting the invalidity of the original removal order as an affirmative defense solely by showing that he was removed for a crime that would not be considered a removable offense under current circuit law, even if he cannot independently demonstrate administrative exhaustion or deprivation of the opportunity for judicial review.
Mexican-national Refugio Palomar-Santiago received U.S. lawful permanent resident status in 1990. U.S. v. Palomar-Santiago at 2. The next year, Palomar-Santiago was convicted of a felony DUI. Id. After receiving a Notice to Appear informing him that he may be removed due to his DUI conviction, Palomar-Santiago appeared before an immigration judge and was subsequently deported. Id. at 2. He was deported due to his felony DUI conviction, which at the time was legally considered a violent crime as described by 18 U.S.C. §16, constituting an aggravated felony under the Immigration and Nationality Act. Id. By 2001, however, the Ninth Circuit reclassified felony DUI, determining that it did not actually constitute a crime of violence, and applied that determination retroactively to Palomar-Santiago’s case. Id.
In 2017, Palomar-Santiago again resided in the United States—this time, without proper authorization. Id. He was charged with illegal reentry following deportation, under 8 U.S.C. §1326. Id. Palomar-Santiago filed a motion to dismiss under 8 U.S.C. §1326(d). Id. Under that provision, defendants may escape charges of illegal reentry by challenging the validity of the original order under three conditions: (1) the noncitizen in the removal proceeding exhausted administrative remedies to challenge the removal order; (2) the noncitizen was denied the opportunity for judicial review; and (3) the order of removal was fundamentally unfair. Id. Moreover, a defendant may make a showing of fundamental unfairness by showing that “the removal should not have occurred” without proving the other two parts of the test. Id. at 3.
Although he was indicted for residing illegally in the United States, Palomar-Santiago won on appeal by sufficiently showing under §1326(d) that he had been deported for a crime that was “improperly characterized as an aggravated felony”—in short, a crime that was no longer a removable offense. Id. at 2–3. The government appealed to the United States Court of Appeals for the Ninth Circuit. Id. at 3. The court determined that because the law had changed and applied retroactively in Palomar-Santiago’s case, his removal order was illegal and should not have occurred. Id. The Ninth Circuit applied their precedent to this case and found that Palomar-Santiago had a fundamentally unfair trial. Id. at 3-4. Thus, the circuit court dismissed Palomar-Santiago’s charges for illegal reentry. Id. at 4.
The United States then appealed, arguing that while the Ninth Circuit correctly applied its precedent, its precedent was legally wrong due to legislative intent behind federal immigration law, the textual basis of the laws, and persuasive decisions in other circuit courts. The Supreme Court granted the United States’ petition for a writ of certiorari on January 8, 2021.
INDIVIDUAL SHOWING OF REQUIREMENTS UNDER 8 U.S.C. § 1326(d)
Petitioner United States argues that the Ninth Circuit’s test is ineffective because it provides a way around proving each part of the three-part test of 8 U.S.C. §1326(d), which requires satisfaction of procedural and substantive processes. Brief for Petitioner, United States at 13. The United States argues that each part of the test must be met to provide a collateral attack on a wrongful deportation and that a showing that the removal was “fundamentally unfair” should not sufficiently halt a removal case. Id. Because the Ninth Circuit allows for a defendant to skip over the other parts of the test after a showing of a “fundamentally unfair” removal, the United States suggests that the “text, history, design, [and] purpose” of the legislation is disregarded. Id.
Therefore, the United States argues that Palomar-Santiago’s contention that misclassification of a prior conviction satisfies §§1326(d)(1) and (2) is a misapplication of law. Id. at 21–22. This is because, as the United States points out, there is no way that a correct classification of a violent offense at the time it was ruled would prove that a defendant had exhausted all remedies, as designated in §1326(d)(1), or that a defendant was “improperly deprived” of judicial review, as designated in §1326(d)(2). Id. at 22.
In response, Respondent Palomar-Santiago argues that by proving the third requirement of §1326(d), the other requirements of §1326(d) are satisfied. Brief for Respondent, Refugio Palomar-Santiago at 33. The first requirement merely requires exhaustion of available remedies which, Palomar-Santiago contends, leaves an exception open for anyone who does not have an actual available remedy to pursue. Id. at 33. This is because, Palomar-Santiago asserts, the mere existence of a remedy does not make it practically available. See id. at 35. Palomar-Santiago points to the court's decision in United States v. Mendoza-Lopez—where the court found that remedies are unavailable when a defendant “unintelligent[ly]” waives the right of appellate review—and argues that it occurred here since a DUI is not a valid crime for removal proceedings but he was unaware of this at the time. Id. at 35–37. Palomar-Santiago contends that a waiver of judicial review is not “knowing and intelligent” if the defendant is unaware that his crime cannot form the basis of removal. Id. at 38–39. According to Palomar-Santiago, this is especially true for defendants in removal proceedings who are 90% likely to represent themselves without a lawyer present. Id. at 40.
Furthermore, Palomar-Santiago points out that many courts recognize that “claims of innocence” overcome procedural requirements that impede attempts to challenge lawless convictions. Id. at 24. Thus, Palomar-Santiago analogizes to the ability to collaterally attack a federal conviction after the court comes to a new interpretation of law. Id. Palomar-Santiago does this by referencing federal habeas proceedings where a person satisfies all procedural requirements if they can show that they were “actual[ly] innocen[t]” at the time of conviction. Id. at 25. Thus, Palomar-Santiago argues that the court should similarly read the procedural portions of §1326(d) as satisfied when there is a showing that the underlying conviction that formed the basis of deportation proceedings was unlawful. Id. at 26.
BALANCING PROCEDURAL RULES AND JUSTICE IN THE CONSTITUTIONAL CONTEXT
The United States suggests that the correct legal standard that applies should look at whether the defendant had “the opportunity to obtain administrative and judicial review and thus the opportunity to challenge the categorization of his conviction.” Brief for Petitioner at 25. Since Palomar-Santiago could have requested judicial review of the underlying conviction, but did not, the United States argues that he did not exhaust all remedies. Id. at 26. Thus, the United States asserts that allowing the Ninth Circuit’s current application of law would create advantages for individuals who did not take any appropriate action regarding appeal or review of their case. Id. at 36–37.
The United States argues that the Ninth Circuit cannot bypass procedural rules in this case, and that the only circumstances in which bypasses were permissible were enumerated in Ross v. Blake. Brief for Petitioner at 22–23. According to the United States, Ross found that procedural processes are unavailable when 1) the procedure is effectively a “dead end”; 2) the process is so vague that it would be unrealistic to use; or 3) the defendant is dissuaded or intimidated from using the procedural process. Id. at 23. Since none of these occurred in the case presented here, the United States contends that there is no misrepresentation of the procedural requirements to classify them as satisfied. Id. at 23–24. Additionally, the United States argues that Ross was only meant to apply as a narrow exception and was never meant to apply to cases involving a change of law. Id. at 26.
In contrast, Palomar-Santiago argues that the court should not allow procedural steps to bar the application of law that has such a substantial effect on a person’s constitutional rights. Brief for Respondent at 24. Reading §1326(d) as the government suggests would, Palomar-Santiago argues, make §1326(d) useless because someone who was invalidly deported and reentered on the basis of the invalidity would nonetheless be arrested for illegally reentering. Id. at 32. Because of the vagueness of how this issue falls into the context of §1326(d), Palomar-Santiago contends that the court should find in favor of him since the rule of lenity requires criminal statutes to be “construed in favor of defendants.” Id. at 46. A finding in the alternative, Palomar-Santiago points out, would allow the US to “take advantage of the [illegitimate] removal order” and “compound its unjust result by using it to convict Palomar-Santiago.” Id. at 50.
Palomar-Santiago further responds by arguing that the three examples of Ross are illustrative but are not the only options available. Brief for Respondent at 43. Instead, Palomar-Santiago contends that it would be unconstitutional to allow the procedural portions of the law to uphold an invalid deportation. Id. at 13. For purposes of equity and upholding constitutional values, Palomar-Santiago argues that he should be able to collaterally attack his current deportation conviction. Id. at 14–15.
The United States argues that the intent of Congress in passing the law is pivotal in this case, pointing to the language chosen in the statute stating that a defendant may only “challenge the validity of the deportation order” if they meet every prerequisite in the statute. Brief for Petitioner at 15. With this in mind, the United States contends that Ninth Circuit precedent oversteps by changing requirements that Congress wrote as mandatory. Id. at 17.
In response, Palomar-Santiago argues that the legislative intent behind the language used in §1326 was not meant to create a procedural barrier to protecting a constitutional right. Brief for Respondent at 28. In particular, Palomar-Santiago points to the Founding Fathers’ intention to protect rights whenever a procedural rule might stand as an obstacle to a just outcome. Id. at 17. Otherwise, Palomar-Santiago warns, the government runs the risk of upholding rules that run counter to constitutional protection of rights. Id.
REMEDIES AVAILABLE FOR ILLEGAL REMOVAL ORDERS
The Immigration Reform Law Institute (“IRLI”), in support of the United States, argues that if the removal hearing is fairly conducted according to the law at the time, then the removal order itself cannot characterized as illegal. See Brief of Amicus Curiae The Immigration Reform Law Institute (“IRLI” ), in support of Petitioner at 11–12. They contend that subsequent changes of law—for example, removing a DUI from the list of “aggravated felonies”—is not a basis upon which a removal order may be challenged. Id. Further, IRLI argues that defendants charged with unlawful reentry may only challenge the preexisting removal order when a procedural error prejudiced the proceedings at immigration court, rendering the removal order “fundamentally unfair.” Id. at 11. The United States adds that a fair opportunity to challenge the removal order at the time it is given is a satisfactory remedy for unlawful reentry defendants, given the state interest in closing cases. See Brief for Petitioner, The United States at 28, 35. The United States thus argues that Palomar-Santiago and similarly positioned defendants have the opportunity to challenge the legality of the removal order based on felony when it was handed down, but not years after the fact. Id. at 35–36.
In contrast, the National Association of Criminal Defense Lawyers (“NACDL”), in support of Palomar-Santiago, contends that even using an administrative order of removal from an immigration court for a criminal conviction inherently raises questions of fairness, regardless of the validity of the removal order. See Brief of Amicus Curiae The National Association of Criminal Defense Lawyers (“NACDL”), in support of Respondent at 4. NACDL points out that administrative orders, like those of removal from an immigration court, are not usually relied on in criminal prosecution because of the divergent interests in civil and criminal actions. Id. at 7, 9. Thus, NACDL argues that using an administrative order as a prerequisite for conviction, while simultaneously forbidding the defendant from challenging the removal order except in a very narrow set of circumstances, is “troubling,” noting that there is no clear path to ever challenge the removal order if and when laws change. Id. at 14–15. In addition, the National Association of Federal Defenders, in support of Palomar-Santiago, argues that, practically speaking, this ruling would only impact lawful permanent residents (“LPRs”), not all noncitizens. See Brief of Amicus Curiae The National Association of Federal Defenders (“NAFD”), in support of Respondent at 4–5. NAFD then points out that the constitution protects LPRs in ways that it does not protect other noncitizens, entitling LPRs “to live much like a U.S. citizen” when they do not commit a removal crime. Id. at 6, 8. NAFD argues that failing to recognize the innocence of Palomar-Santiago—and other similarly situated defendants—results in the miscarriage of justice. See id. at 8–13.
NAVIGATING THE IMMIGRATION SYSTEM
The United States argues that noncitizens have the opportunity to appeal removal orders. See Brief for Petitioner at 35. The United States contends that the “diligent alien” will not waive the appeal of a removal order, but rather follow the procedural steps required in order to attain judicial review. Id. at 36. The United States further notes that, by allowing noncitizens to attack removal orders after they have been finalized, the Ninth Circuit permits those who failed to appeal to circumvent the law. Id. at 36–37. Ultimately, the United States points out that what matters for the purposes of challenging the validity of removal orders is the opportunity to appeal, not the success of that appeal, so that defendants who did, in fact, try to appeal have their diligence held against them. Id. at 37.
In response, the National Immigration Project et al. (“NIP”), in support of Palomar-Santiago, contend that while it might be theoretically possible for noncitizens to appeal, both procedure and the complexity of immigration law itself often block the ability of noncitizens to seek meaningful review of their removal orders. See Brief of Amici Curiae NIP et al., in Support of Respondent at 6. NIP highlights procedural impediments—like the limited time frame to submit an appeal as well as the complexity in assessing potential mistakes—that are challenging for even experts in immigration law. Id. at 8–9. Former Executive Office of Immigration Review Judges (“Former EOIR Judges”), also in support of Palomar-Santiago, agree and add that the vast majority of noncitizens in immigration court neither speak English nor have attorneys, let alone the immigration specialists suggested by NIP. See Brief of Former EOIR Judges, in Support of Respondent at 5–7. As a result, NIP contends that only 17% of the decisions made in immigration court are ever appealed. Brief of NIP at 11–12. Moreover, NIP argues that in cases like Palomar-Santiago’s, an appeal would not be “meaningfully available,” because the ruling was based on then-settled definitions of removal crimes. Id. at 17–18.
- Zoe Bouras, Supreme Court Immigration Docket 2020-2021, The Immigration Project (Jan. 28, 2021)
- Brian M. Fish, Courthouse Steps Oral Argument: United States v. Palomar-Santiago, The Federalist Society (Apr. 27, 2021).