On May 24, Justice Sotomayor, writing for a unanimous Supreme Court, ruled that the Immigration and Nationality Act (INA) means what it says, in a sharp rebuke to a long line of contrary Ninth Circuit precedent. What should have been obvious was anything but as the case made its way to the Marble Palace.
By way of background, the alien respondent in United States v. Palomar-Santiago is a Mexican national who received a green card in 1990. In 1991, he was convicted of felony DUI in state court in California.
For reasons that are not clear, it took the former Immigration and Naturalization Service until 1998 to catch up with him, but when it did, he was charged with removability as an alien who had been convicted of an aggravated felony as defined in section 101(a)(43)(F) of the INA.
That provision includes within the definition of “aggravated felony” for purposes of the INA any alien who has been convicted of a “crime of violence” as defined in 18 U.S.C. § 16, for which the term of imprisonment is at least one year.
Subsection (a) therein defines a crime of violence as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another”.
Whether DUI could be an aggravated felony under section 101(a)(43)(F) of the INA was an open question in the law that was ultimately resolved by the Supreme Court in 2004 in Leocal v. Ashcroft.
The Court held there that a Florida DUI statute that punished negligent behavior (or less than negligent behavior) did not qualify as a crime of violence under 18 U.S.C. § 16, and therefore was not an aggravated felony under section 101(a)(43)(F) of the INA.
That decision largely eradicated DUI as an aggravated felony under the INA. But it was issued too late to have been of assistance to Palomar-Santiago.
He appeared in removal proceedings six years before Leocal was issued, and an immigration judge (IJ) concluded that he was removable as an alien convicted of an aggravated felony. He waived appeal from that decision, and was removed the next day to Mexico.
In 2017, the government found Palomar-Santiago living in the United States, and he was charged criminally with unlawful reentry after removal under section 276 of the INA. He sought dismissal of that charge at the district court, arguing that his original removal was invalid under Leocal.
Section 276(d) of the INA strictly limits the ability of criminal defendants to make such collateral attacks (challenges in separate proceedings — such as criminal proceedings — for independent purposes having nothing to do with deportation) on the underlying validity of a prior removal order.
To succeed on a challenge of this sort, an alien must show that he or she had exhausted all possible administrative remedies against the removal order; that the removal proceedings at which that order was issued “improperly deprived the alien of the opportunity for judicial review”; and that “the entry of the order was fundamentally unfair”.
In other words, it is not enough to say that a removal order was wrongly decided to avoid the criminal consequences of reentry. To challenge the validity of the underlying removal order on which the criminal charge is based, the alien must show that he or she tried everything possible to avoid removal, but couldn’t.
That is not as hard as it might sound. There would have been no precedent in Leocal had Leocal not appealed the underlying removal order all the way to the Supreme Court.
And the rule prevents removed aliens from simply reentering when the crimes for which they were removed are later determined — in separate proceedings involving different aliens — to not satisfy the grounds of removability.
IJs are required by statute to inform alien respondents of their right to appeal their decisions (and of the consequences of the respondent’s failure to depart), and there is no evidence that such advisals were not issued in Palomar-Santiago. Pursuant to regulation, Palomar-Santiago could have sought review of the IJ’s order from the Board of Immigration Appeals (BIA).
As noted, however, the alien in this case waived his BIA appeal, triggering his removal. Nor did he file a petition for circuit court review of that decision, which is permitted under section 244 of the INA (although getting a petition granted almost always requires the petitioner to exhaust administrative remedies by appealing to the BIA).
If this seems pretty straightforward, you would be wrong, because the Ninth Circuit did not see things as clearly as Justice Sotomayor — and the other eight justices — did.
In its 2017 decision in United States v. Ochoa, the Ninth Circuit held that the first two requirements for challenging an underlying removal order in section 276(d) of the INA (again, exhaustion of administrative remedies and a showing that the underlying removal proceedings “improperly deprived the alien of the opportunity for judicial review”) didn’t apply where the alien was not ultimately deemed removable based on the criminal conviction.
To be fair, the circuit court in Ochoa was not writing on a blank slate: It was building on its own case law that dated back to 2004. That said, Congress was pretty clear in section 276(d) of the INA with respect to the burden that a defendant in a criminal reentry case must carry to attack an underlying removal order.
It was on that precedent that the district court dismissed the charges against Palomar-Santiago, a decision that was affirmed by the Ninth Circuit.
Palomar-Santiago did not rely solely on Ninth Circuit precedent in challenging the criminal charges against him before the Supreme Court, however.
He also argued that administrative review is not available where the IJ erroneously concludes that the alien is removable.
Justice Sotomayor disposed of this argument fairly quickly, holding that an error by the IJ on the merits of the case doesn’t excuse the alien’s failure to seek appeal, if administrative and judicial review could “fix that very error”.
There really would have been no way for her to have ruled otherwise without trashing the language in section 276(d) of the INA. The exhaustion provision therein, in particular, would have been a dead letter if she had bought the alien’s argument.
He also argued that section 276(d) of the INA only applies where the alien defendant is arguing that there were procedural defects in the underlying administrative proceeding, not substantive errors. In other words, Palomar-Santiago contended, a substantive error renders flawed orders “invalid from the moment they are entered.”
Justice Sotomayor dismissed that line of argument as curtly (correcting erroneous interpretations of the INA is, in part, what challenges in removal proceedings are for), as she did a contention that would have invited the Court to have interpreted section 276(d) of the INA differently to avoid constitutional due process and separation of power concerns (which the Court did not appear to have in any event).
Long story short: Section 276(d) of the INA permits aliens to collaterally attack underlying removal orders in criminal proceedings under section 276 only if defendants satisfy all three of the requirements in that provision, and properly seek administrative and judicial review of those orders.
Congress was clear, and the Court applied that provision as Congress wrote it. That bodes well for other future interpretations of the immigration laws.