United States v. Palomar-Santiago

P R E L I M I N A R Y P R I N T
Volume 593 U. S. Part 2
Pages 321–329
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
May 24, 2021
REBECCA A. WOMELDORF
reporter of decisions
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321
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 ap-
peal. 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 frst 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 funda-
mentally 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 pre-
cedent, the District Court and Court of Appeals held that Palomar-
Santiago was excused from proving the frst two requirements of
§ 1326(d) because his felony DUI conviction had not made him remov-
able. The District Court granted the motion to dismiss, and the Ninth
Circuit affrmed.
Hel d: Each of the st atutory requirements of § 1326(d) is mandatory.
Pp. 326–329.
(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 frst two re-
quirements are not satisfed just because a noncitizen was removed for
an offense that should not have rendered him removable. The substan-
tive validity of a removal order is quite distinct from whether the noncit-
izen exhausted administrative remedies or was deprived of the opportu-
nity for judicial review. P. 326–327.
(b) Palomar-Santiago's counterarguments are unpersuasive. First,
he contends that further administrative review of a removal order is not

322 UNITED
STATES v. PALOMAR-SANTIAGO
Syllabus
“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 administra-
tive review, and then judicial review if necessary, could fx 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 fawed 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 forecloses
Palomar-Santiago's interpretation. Pp. 327–329.
813 Fed. Appx. 282, reversed and remanded.
Sotomayor, J., delivered the opinion for a unanimous Court.
Erica L. Ross argued the cause for the United States.
With her on the briefs were Acting Solicitor General Prelo-
gar, Acting Assistant Attorney General McQuaid, Deputy
Solicitor General Gannon, and William A. Glaser.
Bradley N. Garcia, by appointment of the Court, 592
U. S. –––, argued the cause for respondent. With him on the
brief was Jeffrey L. Fisher.*
*Christopher J. Hajec fled a brief for the Immigration Reform Law
Institute as amicus curiae urging reversal.
Briefs of amici curiae urging affrmance were fled for Former Execu-
tive Offce of Immigration Review Judges by Richard W. Mark and Amer
S. Ahmed; for the National Association of Criminal Defense Lawyers by
David A. O'Neil and Jeffrey T. Green; for the National Association of
Federal Defenders by Brianna Fuller Mircheff, David Menninger, and
Daniel L. Kaplan; for the National Immigration Project et al. by Tobias
S. Loss-Eaton, Kelly Huggins, Naomi Igra, and Sirine Shebaya; and for
Kelly Lytle Hernández et al. by Alexia D. Korberg, Farrah R. Berse, Ahi-
lan Arulanantham, and Hiroshi Motomura.
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Opinion of the Court
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
felony driving under the infuence (DUI). He later returned
to the United States and was indicted on one count of
unlawful reentry in violation of 8 U. S. C. § 1326(a). Be-
tween Palomar-Santiago's removal and indictment, th is
Court held that offenses like his DUI conviction do not in
fact render noncitizens removable. Palomar-Santiago now
seeks to defend against his unlawful-reentry charge by chal-
lenging the validity of his 1998 removal order.
By statute, defendants “may not” bring such collateral at-
tacks “unless” they “demonstrat[e]” that (1) they “exhausted
any administrative remedies that may have been available
to seek relief against the [removal] order,” (2) the removal
proceedings “improperly deprived [them] of the opportunity
for judicial review,” and (3) “entry of the order was funda-
mentally unfair.” § 1326(d).
The question for the Court is whether Palomar-Santiago
is excused from making the frst two of these showings, as
the Court of Appeals for the Ninth Circuit held, because his
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 ag-
gravated 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 property of an-
other.” 18 U. S. C. § 16(a).
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324 UNITED
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Opinion of the Court
Noncitizens facing removal generally receive a hearing be-
fore
an immigration judge. Noncitizens can proffer defenses
at that hearing, including that the conviction identifed in the
charging document is not a removable offense. If unsuc-
cessful, they may appeal to the Board of Immigration Ap-
peals (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 stat-
ute criminalizing unlawful reentry did not originally allow
defendants to raise the invalidity of their underlying removal
orders as an affrmative defense. This Court later held,
however, that the statute “does not comport with the consti-
tutional requirement of due process” insofar as it “impose[s]
a criminal penalty for reentry after any deportation, regard-
less 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 pro-
ceeding as an element of a criminal offense must be permit-
ted where the deportation proceeding effectively eliminates
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—
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Opinion of the Court
“(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 opportu-
nity 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 per-
manent 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 Im-
migration and Naturalization Service stating that he was
subject to removal because his DUI offense was an ag-
gravated felony. Follow i ng a hear i ng, an i mmigrati on
judge ordered Palomar-Santiago's removal on that ground.
Palomar-Santiago waived his right to appeal and was re-
moved to Mexico the next day.
Six years later, this Court held in Leocal v. Ashcroft, 543
U. S. 1 (2004), that “a higher mens rea than the merely acci-
dental 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 is-
sued. 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
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326 UNITED
STATES v. PALOMAR-SANTIAGO
Opinion of the Court
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 affrmed. 813 Fed. Appx. 282 (2020).
Both courts were bound by Ninth Circuit precedent pro-
viding that defendants are “excused from proving the frst
two requirements” of § 1326(d) if they were “not convicted 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 frst two requirements.
1
This
Court granted certiorari to resolve this disagreement. 592
U. S. ––– (2021).
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 un-
derlying removal orders “unless” they “demonstrat[e]” that
three conditions are met: (1) they have “exhausted any ad-
ministrative 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,” mean-
ing defendants must meet all three. When Congress uses
“mandatory language” in an administrative exhaustion provi-
sion, “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.
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).
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Opinion of the Court
Without the beneft of the Ninth Circuit's extrastatutory
excepti
on, § 1326(d)'s frst two procedural requirements are
not satisfed 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 distinct
from whether the noncitizen exhausted his administrative
remedies (by appealing the immigration judge's decision to
the BIA) or was deprived of the opportunity for judicial re-
view (by fling a petition for review of a BIA decision 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
is not “available” when an immigration judge erroneously in-
forms a noncitizen that his prior conviction renders him re-
movable. 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 prac-
tically “available” under § 1326(d)(1).
3
Palomar-Santiago looks to Ross v. Blake for support.
That case addressed the Prison Litigation Reform Act, which
2
Pa lomar-Santiago separately arg ues that the offense defi ned 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 argu-
ment with respect to the pre-AEDPA version of § 1326(a). Palomar-
Santiago now presses various distinctions between that case and this, 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).
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 frst appealing
the order to the BIA. See 8 U. S. C. § 1252(d)(1).
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Opinion of the Court
requires that prisoners exhaust “such administrative reme-
dies
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 of-
fcially 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 affrmative 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 immigra-
tion 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 administra-
tive review, and then judicial review if necessary, could fx
that very error.
Second, Palomar-Santiago contends that the § 1326(d) pre-
requisites apply only when a defendant argues that his re-
moval order was procedurally fawed rather than substan-
tively invalid. There can be no “challenge” to or “collateral
attack” on the validity of substantively fawed orders, he rea-
sons, because such orders are invalid from the moment they
are entered. Palomar-Santiago's position ignores the plain
meaning of both “challenge” and “collateral attack.” Ar-
guing that a prior removal order was substantively 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 challenge to an order
takes place in a separate “proceeding that has an independ-
ent purpose,” such as a later criminal prosecution, it is a
“collateral attack.” Id., at 261.
Palomar-Santiago last invokes the canon of constitutional
avoidance.
4
Courts should indeed construe statutes “to
4
Palomar-Santiago argues that “a scheme that permits the results of an
administrative proceeding to conclusively establish a criminal offense”
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Opinion of the Court
avoid not only the conclusion that [they are] unconstitutional,
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 ambiguity.”
United States v. Oakland Cannabis Buyers' Cooperative,
532 U. S. 483, 494 (2001). Here, the text of § 1326(d) unam-
biguously forecloses Palomar-Santiago's interpretation.
***
The Court holds that each of the statutory requirements
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 opinion.
It is so ordered.
raises “due process and separation of powers problems,” which are
“heightened when . . . the agency never had the authority to issue the
order in the frst instance.” Brief for Respondent 15. The parties also
strongly disagree about the suffciency of the paths available for nonciti-
zens to obtain review of prior removal orders outside of an illegal-reentry
prosecution. To the extent Palomar-Santiago raises freestanding consti-
tutional claims on these bases, they were not raised below and are outside
the scope of the narrow question this Court granted certiorari to decide.
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