Supreme Court says invalid removal won’t stop illegal reentry prosecution

In a short, unanimous opinion, the U.S. Supreme Court held that a migrant can be prosecuted for the federal felony of illegal reentry based on a removal order that shouldn’t have been issued in the first place. The Court’s decision in United States v. Palomar-Santiago, No. 20-437 (U.S. May 24, 2021), blocks migrants from defending themselves from federal immigration crime prosecutions that require prosecutors to show that they were previously deported. Even a deportation that shouldn’t have happened, today’s opinion concludes, can trigger a felony conviction.

In 1998, Refugio Palomar-Santiago was convicted of driving under the influence. An immigration judge concluded that DUI was a “crime of violence,” 18 U.S.C. § 16(a), which is a type of aggravated felony. Then, like now, an aggravated felony conviction almost always results in removal from the United States, and that’s what happened to Palomar-Santiago. Also not unusually, he later returned without the government’s permission. Separately, in 2004, the Supreme Court held that DUI offenses aren’t crimes of violence because they lack the requisite mens rea. Leocal v. Ashcroft, 543 U.S. 1 (2004). As a result, the crime that Palomar-Santiago was convicted of violating should not have been declared a crime of violence type of aggravated felony back in 1998 and Palomar-Santiago should not have been removed from the United States on that basis.

Meanwhile, in 2017 prosecutors learned that Palomar-Santiago was back in the United States and indicted him for committing the felony offense of illegal reentry, INA § 276, 8 U.S.C. 1326. First-time offenders can be punished by up to two years of prison time, but people who have previously been deported after an aggravated felony conviction face as much as 20 years imprisonment. INA § 276(a), (b)(2). Palomar-Santiago challenged the illegal entry prosecution, claiming that his earlier removal, which everyone agrees was incorrect, can’t meet the federal crime’s removal requirement. In effect, he was arguing that he can’t be convicted of illegal reentry because that requires a prior removal and his prior removal was plainly illegal.

Though all parties and courts agree that his prior removal was illegal, the Supreme Court’s decision turned instead on whether he met the stringent procedural requirements Congress has set for challenging the validity of underlying removal orders. Under 8 US.C. § 1326(d), defendants accused of committing illegal reentry can challenge the validity of a prior removal order only if they 1) exhausted administrative options for review which, in the immigration context, involves appealing an immigration judge’s order to the Board of Immigration Appeals and then seeking review in a federal circuit court, 2) were “improperly deprived…of the opportunity for judicial review,” and 3) the underlying order “was fundamentally unfair.” The statute places the burden on the migrant to show that all three requirements exist. Applying Ninth Circuit precedent that excuses the first two requirements if the migrant wasn’t convicted of an offense that makes a person removable, the district court and Ninth Circuit didn’t require Palomar-Santiago to show that he exhausted administrative remedies and was improperly deprived the opportunity for judicial review.

The Supreme Court concluded that the federal statute requires a migrant to show all three requirements and Palomar-Santiago’s failure to do so proved fatal to his legal defense. Distinguishing between the “substantive validity of the removal order” and the procedural requirements for challenging the validity of the removal order, the justices concluded that the procedural requirements apply no matter how strong the claim is that the underlying removal order was incorrect. “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,” Justice Sonia Sotomayor wrote on behalf of the full Court.

This is a rather sanguine view of immigration courts. Without a guarantee of counsel, many migrants find themselves in immigration courts without legal assistance. People who are detained while going through the court process are especially unlikely to be represented. Plus, migrants accused of having been convicted of an aggravated felony are subject to mandatory detention. Locked up and without the support of a lawyer, it’s common for migrants to lack the wherewithal to challenge the government’s removal case. It’s even less likely for them to muster the sophistication or money to appeal an immigration judge’s removal order. Indeed, even migrants who are represented appeal to the BIA infrequently because, for many, the cost of legal defense is prohibitively high. To spell out the legal options for review without giving equal weight to the practical impediments to tapping those legal options is disingenuous.

Today’s decision promises to compound existing problems with the administrative exhaustion requirement. As I explain in my book Crimmigration Law (a second edition of which is scheduled for late summer of 2021), some circuits “take the view that migrants can fail to exhaust administrative remedies even when misled by the immigration judge into believing none were available.” After today, an unrepresented migrant who receives bad advice from an immigration judge and follows that advice suffers the consequences. No one else does. This is skewed sense of justice.