U.S. v. Palomar-Santiago, Sup Ct., 05-24-21
https://www.supremecourt.gov/opinions/20pdf/20-437_bqmc.pdf
Syllabus by Court Staff:
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
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UNITED STATES v. PALOMAR-SANTIAGO Syllabus
two requirements are not satisfied just because a noncitizen was re- moved 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 mean- ing 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 fore- closes Palomar-Santiago’s interpretation. Pp. 5–7.
813 Fed. Appx. 282, reversed and remanded.
SOTOMAYOR, J., delivered the opinion for a unanimous Court.
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The lesson here for advocates: Exhaust those administrative appeals and judicial review even when your case seems hopeless. Otherwise, your client will be barred from taking advantage of later changes in the case law. After the fact, a “mere showing of fundamental unfairness” is not sufficient! And, you could be charged with malpractice by recommending that appeals and judicial review be waived.
This ought to generate more clogging of the Federal Courts, particularly the way the BIA is deciding cases these days. But, it’s what the Supremes unanimously asked for, so we have to take them at their word!
Due Process Forever!
PWS
05-24-21