A defendant charged with illegally reentering the United States after being deported isn’t automatically entitled to argue the removal was invalid even if he was removed for a crime that was subsequently deemed not to be a removable offense, the Supreme Court heard.
The case, United States v. Palomar-Santiago, court file 20-437, was heard April 27.
The Biden administration, which inherited the case from the Trump administration, was represented in the 50-minute telephonic hearing by Erica L. Ross from the U.S. Department of Justice (DOJ). The respondent, Refugio Palomar-Santiago, was represented by Bradley N. Garcia.
Immigration law enforcement was a priority for the Trump administration.
In fiscal 2019, 25,426 aliens were charged with illegal entry, a jump of 50 percent from 16,965 two years before.
In the case at hand, Palomar-Santiago, a Mexican national, was granted permanent resident status in 1990. He lost that status in 1991 following a driving under the influence (DUI) conviction, which, at the time, was deemed a crime of violence and therefore an aggravated felony under the Immigration and Nationality Act (INA) that warranted deportation. He was deported in 1998.
In 2004, the Supreme Court ruled in Leocal v. Ashcroft that DUI crimes that lack mens rea, or criminal intent, or merely require negligence for a conviction, aren’t “crimes of violence” that require the convicted alien to be deported.
In 2017, Palomar-Santiago was present in the United States again and was indicted for reentering illegally after being deported, a more serious offense than first-time unlawful entry. He fought the indictment, arguing the crime for which he was originally deported was no longer a deportable offense and that his removal in 1998 was therefore fundamentally unfair.
The U.S. District Court agreed and dismissed the indictment. The U.S. Court of Appeals for the 9th Circuit affirmed the ruling May 14, 2020, holding that the government may not prosecute for reentry where a previous removal order was invalid.
During oral arguments on April 27, Garcia told the Supreme Court that his client “was unlawfully deported.”
“Regardless of the DUI conviction, everyone agrees that that is not and never was a basis to remove a lawful permanent resident from the United States. So this order is substantively invalid.”
Garcia told the court the law here is confusing at times.
This case is “in an area where everybody concedes that the legal doctrines are mystifying and opaque,” he said.
Speaking for the government, Ross told the justices that “Congress stated that a noncitizen may not challenge the validity of his removal order unless he demonstrates that he exhausted any available administrative remedies, that the removal proceedings improperly deprived him of the right to judicial review, and that the entry of the order was fundamentally unfair.”
Palomar-Santiago, whose arguments now “would create a significant loophole in the [INA] statute,” should have previously made the case in court, as other individuals did, that his prior offense was not an aggravated felony, instead of raising it as a defense to the illegal reentry charge, Ross said.
Given that the government concedes the deportation order against Palomar-Santiago wouldn’t today lead to his removal from the country, Justice Clarence Thomas asked Ross why the government was still “pursuing this case.”
“We agree ... that under this court’s decision in Leocal ... DUI is not an aggravated felony,” Ross replied, “but ... we disagree that that makes it a legal nullity that respondent was simply entitled to ignore. We think respondent still had to go through the regular channels to challenge his removal order.”
“Someone who unlawfully reenters the United States, despite an extant removal order that he never challenged, has taken the law into his own hands and just shown a disrespect for the law and for the legal process, that is subject to punishment.”
After Thomas asked Ross if there were “any constitutional concerns lurking in this case,” and Ross replied in the negative, Justice Sonia Sotomayor told the lawyer, “You don’t see a constitutional issue here, but I do.”
Ross said: “It’s clear on this record that there was an opportunity for judicial review and for administrative exhaustion.”
Sotomayor replied, “The reality is that when this conviction happened, neither this circuit nor any court had yet ruled in his favor.”
The Supreme Court ruled in Yakus v. U.S. (1944), Ross said, that “no principle of law or provision of the Constitution precludes Congress from making criminal the violation of an administrative order by someone who has failed to avail himself [of] an adequate separate procedure for adjudication of its validity.”
“And I think that’s precisely what respondent had here in the first instance.”
Chief Justice John Roberts told Garcia “there are a lot of areas where ... the door closes, and you lose the right to go back and challenge prior determinations.” He said, “You seem to be arguing that whenever there is some kind of change or clarification in the law, you do go back and reopen everything.”
Garcia said that wasn’t the case here.
“I think it’s important to keep in mind ... that the government is coming to court and ... looking to impose a new and further criminal punishment on the basis of an order that it knows is invalid,” he said.
