United States v. Palomar-Santiago

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(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
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 “aggra-
vated 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 admin-
istrative 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 require-
ments 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
2 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 de-
prived 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 rec-
ognize a substantive basis to challenge an immigration judge’s conclu-
sion that a prior conviction renders the noncitizen removable. The im-
migration 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 substan-
tively 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 avoid-
ance. 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.
Cite as: 593 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–437
_________________
UNITED STATES, PETITIONER v. REFUGIO
PALOMAR-SANTIAGO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 24, 2021]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
In 1998, respondent Refugio Palomar-Santiago was re-
moved from the United States based on a conviction for fel-
ony driving under the influence (DUI). He later returned
to the United States and was indicted on one count of un-
lawful reentry in violation of 8 U. S. C. §1326(a). Between
Palomar-Santiago’s removal and indictment, this Court
held that offenses like his DUI conviction do not in fact ren-
der noncitizens removable. Palomar-Santiago now seeks to
defend against his unlawful-reentry charge by challenging
the validity of his 1998 removal order.
By statute, defendants “may not” bring such collateral at-
tacks “unless” they “demonstrat[e]” that (1) they “ex-
hausted any administrative remedies that may have been
available to seek relief against the [removal] order,” (2) the
removal proceedings “improperly deprived [them] of the op-
portunity for judicial review,” and (3) “entry of the order
was fundamentally unfair.” §1326(d).
The question for the Court is whether Palomar-Santiago
is excused from making the first two of these showings, as
the Court of Appeals for the Ninth Circuit held, because his
2 UNITED STATES v. PALOMAR-SANTIAGO
Opinion of the Court
prior removal order was premised on a conviction that was
later found not to be a removable offense. The Court holds
that the statute does not permit such an exception.
I
A
Foreign nationals may be removed from the United
States if they are convicted of an “aggravated felony.” 8
U. S. C. §1227(a)(2)(A)(iii). Among the offenses that qualify
as aggravated felonies are “crime[s] of violence . . . for which
the term of imprisonment [is] at least one year.”
§1101(a)(43)(F). The term “crime of violence” includes “an
offense that has as an element the use, attempted use, or
threatened use of physical force against the person or prop-
erty of another.” 18 U. S. C. §16(a).
Noncitizens facing removal generally receive a hearing
before an immigration judge. Noncitizens can proffer de-
fenses at that hearing, including that the conviction identi-
fied in the charging document is not a removable offense. If
unsuccessful, they may appeal to the Board of Immigration
Appeals (BIA). See 8 U. S. C. §1229a(c)(5); 8 CFR
§§1003.1(b), (d)(3), 1240.15 (2021). If unsuccessful again,
they can seek review of the BIA’s decision before a federal
court of appeals. See 8 U. S. C. §§1101(a)(47), 1252.
Once a noncitizen is removed, it is a crime to return to
the United States without authorization. §1326(a). The
statute criminalizing unlawful reentry did not originally al-
low defendants to raise the invalidity of their underlying
removal orders as an affirmative defense. This Court later
held, however, that the statute “does not comport with the
constitutional requirement of due process” insofar as it “im-
pose[s] a criminal penalty for reentry after any deportation,
regardless of how violative of the rights of the [noncitizen]
the deportation proceeding may have been.” United States
v. Mendoza-Lopez, 481 U. S. 828, 837 (1987). “[A]t a mini-
mum,” “a collateral challenge to the use of a deportation
Cite as: 593 U. S. ____ (2021) 3
Opinion of the Court
proceeding as an element of a criminal offense must be per-
mitted where the deportation proceeding effectively elimi-
nates the right of the [noncitizen] to obtain judicial review.”
Id., at 839.
Congress responded by enacting §1326(d). See Antiter-
rorism and Effective Death Penalty Act of 1996 (AEDPA),
§441, 110 Stat. 1279. Entitled “Limitation on collateral at-
tack on underlying deportation order,” §1326(d) establishes
three prerequisites that defendants facing unlawful-
reentry charges must satisfy before they can challenge their
original removal orders. The statute provides:
“In a criminal proceeding under this section, an alien
may not challenge the validity of the deportation order
. . . unless the alien demonstrates that—
“(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 oppor-
tunity for judicial review; and
“(3) the entry of the order was fundamentally unfair.”
8 U. S. C. §1326(d).
B
Palomar-Santiago is a Mexican national who obtained
permanent resident status in 1990. The following year, he
was convicted in California state court of a felony DUI. In
1998, Palomar-Santiago received a Notice to Appear from
the Immigration and Naturalization Service stating that he
was subject to removal because his DUI offense was an ag-
gravated felony. Following a hearing, an immigration judge
ordered Palomar-Santiago’s removal on that ground. Palo-
mar-Santiago waived his right to appeal and was removed
to Mexico the next day.
Six years later, this Court held in Leocal v. Ashcroft, 543
4 UNITED STATES v. PALOMAR-SANTIAGO
Opinion of the Court
U. S. 1 (2004), that “a higher mens rea than the merely ac-
cidental or negligent conduct involved in a DUI offense” is
necessary for an offense to qualify as a crime of violence.
Id., at 11. Accordingly, Palomar-Santiago’s DUI conviction
was not a crime of violence under 18 U. S. C. §16(a), and so
not an aggravated felony under 8 U. S. C. §1101(a)(43).
Palomar-Santiago’s removal order thus never should have
issued. See Rivers v. Roadway Express, Inc., 511 U. S. 298,
312–313 (1994) (“A judicial construction of a statute is an
authoritative statement of what the statute meant before
as well as after the decision of the case giving rise to that
construction”).
In 2017, Palomar-Santiago was found again living in the
United States. A grand jury indicted him on one count of
unlawful reentry after removal. Palomar-Santiago moved
to dismiss the indictment on the ground that his prior re-
moval order was invalid in light of Leocal. The District
Court granted the motion, and the Court of Appeals for the
Ninth Circuit affirmed. 813 Fed. Appx. 282 (2020).
Both courts were bound by Ninth Circuit precedent
providing that defendants are “excused from proving the
first two requirements” of §1326(d) if they were “not con-
victed of an offense that made [them] removable.” United
States v. Ochoa, 861 F. 3d 1010, 1015 (2017). Other Courts
of Appeals do not excuse similarly situated unlawful-
reentry defendants from meeting §1326(d)’s first two re-
quirements.1 This Court granted certiorari to resolve this
disagreement. 592 U. S. ___ (2021).
——————
1 See, e.g., United States v. Parrales-Guzman, 922 F. 3d 706, 706–708
(CA5 2019); United States v. Watkins, 880 F. 3d 1221, 1224–1226 (CA11
2018) (per curiam); United States v. Gil-Lopez, 825 F. 3d 819, 823 (CA7
2016); United States v. Soto-Mateo, 799 F. 3d 117, 120–124 (CA1 2015);
United States v. Rodriguez, 420 F. 3d 831, 833–835 (CA8 2005); United
States v. Rivera-Nevarez, 418 F. 3d 1104, 1107–1111 (CA10 2005);
United States v. Martinez-Rocha, 337 F. 3d 566, 568–570 (CA6 2003).
Cite as: 593 U. S. ____ (2021) 5
Opinion of the Court
II
The Ninth Circuit’s interpretation is incompatible with
the text of §1326(d). That section provides that defendants
charged with unlawful reentry “may not” challenge their
underlying removal orders “unless” they “demonstrat[e]”
that three conditions are met: (1) they have “exhausted any
administrative remedies,” (2) they were “deprived . . . of the
opportunity for judicial review,” and (3) “the entry of the
order was fundamentally unfair.” 8 U. S. C. §1326(d). The
requirements are connected by the conjunctive “and,”
meaning defendants must meet all three. When Congress
uses “mandatory language” in an administrative exhaus-
tion provision, “a court may not excuse a failure to exhaust.”
Ross v. Blake, 578 U. S. 632, 639 (2016). Yet that is what
the Ninth Circuit’s rule does.
Without the benefit of the Ninth Circuit’s extrastatutory
exception, §1326(d)’s first two procedural requirements are
not satisfied just because a noncitizen was removed for an
offense that did not in fact render him removable. Indeed,
the substantive validity of the removal order is quite dis-
tinct from whether the noncitizen exhausted his adminis-
trative remedies (by appealing the immigration judge’s de-
cision to the BIA) or was deprived of the opportunity for
judicial review (by filing a petition for review of a BIA deci-
sion with a Federal Court of Appeals).
III
Palomar-Santiago raises two counterarguments based on
the text of §1326(d).2 Neither is persuasive. First, he con-
tends that further administrative review of a removal order
——————
2 Palomar-Santiago separately argues that the offense defined by
§1326(a) includes as an element the defendant’s previous lawful removal
such that unlawful removals cannot support a conviction. United States
v. Mendoza-Lopez, 481 U. S. 828, 834–835 (1987), rejected a similar ar-
gument with respect to the pre-AEDPA version of §1326(a). Palomar-
Santiago now presses various distinctions between that case and this,
6 UNITED STATES v. PALOMAR-SANTIAGO
Opinion of the Court
is not “available” when an immigration judge erroneously
informs a noncitizen that his prior conviction renders him
removable. Noncitizens, the argument goes, cannot be ex-
pected to know that the immigration judge might be wrong.
Because noncitizens will not recognize a substantive basis
for appeal to the BIA, that administrative review is not
practically “available” under §1326(d)(1).3
Palomar-Santiago looks to Ross v. Blake for support.
That case addressed the Prison Litigation Reform Act,
which requires that prisoners exhaust “such administrative
remedies as are available” before suing in federal court. 42
U. S. C. §1997e(a). Ross held that whether such remedies
are “available” turns on “the real-world workings of prison
grievance systems,” and it acknowledged that there are “cir-
cumstances in which an administrative remedy, although
officially on the books, is not capable of use to obtain relief.”
578 U. S., at 643. Nothing in Ross, however, suggests that
the substantive complexity of an affirmative defense can
alone render further review of an adverse decision “unavail-
able.” Administrative review of removal orders exists pre-
cisely so noncitizens can challenge the substance of immi-
gration judges’ decisions. The immigration judge’s error on
the merits does not excuse the noncitizen’s failure to comply
with a mandatory exhaustion requirement if further ad-
ministrative review, and then judicial review if necessary,
could fix that very error.
Second, Palomar-Santiago contends that the §1326(d)
prerequisites apply only when a defendant argues that his
——————
but the Court declines to address his arguments, which were neither
raised below nor fairly encompassed by the question presented to this
Court. See Brownback v. King, 592 U. S. ___, ___, n. 4 (2021) (slip op., at
5, n. 4).
3 On this theory, the unavailability of administrative review before the
BIA would also mean that noncitizens like Palomar-Santiago do not have
the “opportunity” for judicial review under §1326(d)(2), because they may
not seek review of a removal order in federal court without first appeal-
ing the order to the BIA. See 8 U. S. C. §1252(d)(1).
Cite as: 593 U. S. ____ (2021) 7
Opinion of the Court
removal order was procedurally flawed rather than sub-
stantively invalid. There can be no “challenge” to or “collat-
eral attack” on the validity of substantively flawed orders,
he reasons, because such orders are invalid from the mo-
ment they are entered. Palomar-Santiago’s position ig-
nores the plain meaning of both “challenge” and “collateral
attack.” Arguing that a prior removal order was substan-
tively unlawful is a “challenge” to that order. See Black’s
Law Dictionary 230 (6th ed. 1990) (“Challenge” means “[t]o
object or except to” or “to put into dispute”). When a chal-
lenge to an order takes place in a separate “proceeding that
has an independent purpose,” such as a later criminal pros-
ecution, it is a “collateral attack.” Id., at 261.
Palomar-Santiago last invokes the canon of constitu-
tional avoidance.4 Courts should indeed construe statutes
“to avoid not only the conclusion that [they are] unconstitu-
tional, but also grave doubts upon that score.” United
States v. Jin Fuey Moy, 241 U. S. 394, 401 (1916). But this
canon “has no application in the absence of statutory ambi-
guity.” United States v. Oakland Cannabis Buyers’ Cooper-
ative, 532 U. S. 483, 494 (2001). Here, the text of §1326(d)
unambiguously forecloses Palomar-Santiago’s interpreta-
tion.
* * *
The Court holds that each of the statutory requirements
——————
4 Palomar-Santiago argues that “a scheme that permits the results of
an administrative proceeding to conclusively establish a criminal of-
fense” raises “due process and separation of powers problems,” which are
“heightened when . . . the agency never had the authority to issue the
order in the first instance.” Brief for Respondent 15. The parties also
strongly disagree about the sufficiency of the paths available for noncit-
izens to obtain review of prior removal orders outside of an illegal-
reentry prosecution. To the extent Palomar-Santiago raises freestanding
constitutional claims on these bases, they were not raised below and are
outside the scope of the narrow question this Court granted certiorari to
decide.
8 UNITED STATES v. PALOMAR-SANTIAGO
Opinion of the Court
of §1326(d) is mandatory. The judgment of the Court of Ap-
peals for the Ninth Circuit is reversed, and the case is re-
manded for further proceedings consistent with this opin-
ion.
It is so ordered.