Supreme Court Decides United States v. Palomar-Santiago

On May 24, 2021, the U.S. Supreme Court decided United States v. Palomar-Santiago, No. 20-437, holding that each of the statutory requirements for bringing a collateral attack against a removal order under 8 U.S.C. § 1326(d) is mandatory.

In 1998, Refugio Palomar-Santiago was removed from the United States based on a conviction for felony driving under the influence (DUI) after a hearing before an immigration judge. Palomar-Santiago waived his right to appeal.

In 2017, Palomar-Santiago was found again in the United States and was indicted on one count of unlawful reentry after removal. Under 8 U.S.C. § 1326(d), defendants facing unlawful-reentry charges can challenge their original removal orders only if they satisfy three statutory requirements: “(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.”

In the district court and Ninth Circuit, Palomar-Santiago successfully challenged his unlawful-reentry indictment under a principle on which the circuits were split. Ninth Circuit precedent excused § 1326(d)’s first two requirements if the prior conviction was not for a removable offense. This was the basis for Palomar-Santiago’s challenge, because after his conviction and removal, the Supreme Court held (in Leocal v. Ashcroft, 543 U.S. 1 (2004)) that a DUI offense is not an aggravated felony justifying removal. Unlike the Ninth Circuit, other Courts of Appeals did not excuse similarly situated unlawful-reentry defendants from meeting § 1326(d)’s first two requirements.

Resolving the circuit split, the Supreme Court reversed, holding that defendants challenging their original removal orders must meet all three requirements of § 1326(d), because the statute’s use of the word “and” is “mandatory language” that courts have no power to override.

The Court rejected the argument that administrative review is not practically “available” when an immigration judge erroneously informs a noncitizen that his prior conviction renders him removable. The Court reasoned that “the substantive complexity of an affirmative defense” cannot “alone render further review of an adverse decision unavailable.” The Court also rejected the argument that § 1326(d)’s requirements apply only to claims of procedural rather than substantive flaws in a prior removal order, because the plain meaning of “challenge” and “collateral attack” includes claims of substantive invalidity.

Justice Sotomayor delivered the opinion for a unanimous Court.