Justices weigh available defenses to criminal re-entry for certain immigrants

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watercolor sketch of man sitting at desk with speaker phone and many sheets of paper

From Jennifer Koh


at 11:03 pm

Bradley Garcia advocates Refugio Palomar-Santiago. (Art lien)

The court heard a dispute Tuesday in the United States v. Palomar-Santiago case over the ability of certain non-citizens to defend themselves against federal re-entry charges after deportation. Criminal re-entry charges require a deportation order issued by a federal immigration authority. In the case of Refugio Palomar-Santiago, this previous removal order existed. However, the 2004 Supreme Court ruling in the Leocal v Ashcroft case, taken after his removal order was received, found that the Administration’s decision to remove him was not legally justified. Nevertheless, the Federal Prosecutor’s Office brought a re-entry charge against him on the basis of the same order. The question is whether Palomar-Santiago can defend himself against re-entry prosecution due to the invalidity of the original deportation decision, or whether his defense must fail because he cannot meet the additional requirements set by law – namely that he has “exhausted” his options for the Prosecuting an administrative complaint against the deportation order and that the original trial deprived him of judicial review.

The government case presented by Assistant Attorney General Erica Ross highlighted the text of the legal provision governing the ability of a non-citizen to question the validity of a prior deportation order during a re-entry prosecution. This law, 8 USC § 1326 (d), was enacted by Congress following the 1987 court ruling against Mendoza-Lopez in the United States and, according to Ross, only provides a “narrow escape hatch” for such challenges. The government’s general theory is that Congress reasonably intended to apply the additional requirements (administrative exhaustion and withdrawal of judicial review) even in cases like Palomar-Santiago where the prior removal order was found to have no legal basis. Ross stressed that Congress had tried to prevent people from “taking control of the law” by re-entering the country and only questioning the previous order on re-entry charges.

Bradley Garcia argued for Palomar-Santiago, claiming that Section 1326 (d) – which describes how “the validity of the deportation order may be challenged” – contains an implicit assumption that the deportation order is indeed valid. Accordingly, Congress did not intend to proceed with a re-entry prosecution on the basis of already invalid deportation orders in order to proceed and therefore not all legal requirements need to apply. With that in mind, re-entry prosecutions based on an invalid deportation order simply cannot continue. During his argument, Garcia stressed the material invalidity of the previous order. But even assuming that non-citizens must meet the requirements of Section 1326 (d), he argued that Palomar-Santiago had already met them because the administrative remedial measures required were virtually unavailable to him.

Several judges examined the meaning and significance of the previous deportation decision, which was deemed invalid. Chief Justice John Roberts challenged the government’s views on Palomar-Santiago’s characterization of the deportation order as void from the outset (that is, void from the outset), and Judge Clarence Thomas asked whether the government had admitted that the underlying deportation order was “substantive The government agreed that Leocal’s Palomar-Santiago could not be deported under the influence of the driver for the same belief that served as the basis for his previous deportation warrant. Ross, however, refused to use the deportation warrant as either “Legal nullity” or equivalent to immigration, which has no jurisdiction to enter the order, instead, Ross insisted that the deficiencies in the previous order did not relieve Palomar-Santiago from the need to meet the stringent requirements of Section 1326 (d) to he to fill. Judge Stephen Breyer drew a comparison with the criminal context and asked if any unusual results follow as a result of habeas review someone convicted of a crime that the courts later find the government had no power to criminalize remedied may, but in this case a person has been “put in jail”. In response, Ross distinguished the Palomar-Santiago case from the alleged innocence case, claiming that “a faultless removal order is not an element” required to prosecute someone for criminal re-entry.

Roberts reached out to Garcia on similar issues related to the validity of the previous order and was skeptical of the argument that the right to redress comes automatically as soon as there is a change or clarification of the law – a position suggested by the Chief Justice . “We now know this was wrong, so we have to go back and … decipher the egg.” Similarly, Judge Samuel Alito noted to Garcia that, despite Garcia’s allegations of the invalidity of the order, his client’s defense appeared to continue to be subject to the requirements of Section 1326 (d), which describes a “challenge” [to] the validity of the deportation order. Breyer asked if it was only true to call Palomar-Santiago’s previous order illegal if “he really had not driven under the influence of Palomar-Santiago 35 years ago”. Garcia highlighted the undisputed nature of the invalidity of the deportation order and the problem of imposing additional penalties on an order that the government “knows is invalid”.

Palomar-Santiago’s briefing argued that the underlying constitutional concerns should sway the court’s reading of the statute, and while such considerations surfaced Tuesday, they did not dominate the argument. Thomas and Justice Sonia Sotomayor asked Ross about the government’s position on these constitutional concerns, which they largely dismissed as irrelevant given the clarity of the statute. Sotomayor expressed her view that there were indeed constitutional issues in the case, as a non-citizen had no way of revoking a deportation order that was deemed invalid. Ross expressed the government’s view that Congress may criminalize offenses based on administrative orders if a person fails to use the available procedures to contest those orders. On this point, Palomar-Santiago’s attorney attempted to confine the main case brought against the United States by the Yaku administration to its war context.

Given that one of the requirements of Section 1326 (d) is administrative exhaustion, the judges had questions about whether exhaustion is practically available in the form of a complaint to the Immigration Board of Appeal for non-citizens like Palomar-Santiago. Judge Elena Kagan asked for both sides how potential immigration judge misrepresentations would affect the availability of administrative exhaustion, which led to various discussions on the application of the administrative exhaustion exemptions and the importance of the availability of a review process. Thomas, Kagan and Justice Amy Coney Barrett asked Garcia if the complexity of his client’s potential legal appeal – which Garcia said would require mastery of “mystifying and opaque legal doctrines” – should be considered a factor in assessing administrative exhaustion. Garcia believed that the availability of administrative resources should be an individualized analysis taking into account legal complexities, among other things, and also drew attention to the practical obstacles faced by non-citizens, as in an amicus presented by the National Immigration Project – letter set out.

Alito and Sotomayor tried to better understand the options Palomar-Santiago might have pursued than a direct administrative appeal to address the shortcoming in his deportation warrant. The government stressed that, apart from the administrative complaint, he may have filed a reopening motion or asked the Attorney General for discretion. However, Garcia claimed that Palomar-Santiago’s request to reopen “has been excluded from [federal] Regulation ”for a period of time (presumably referring to the“ post-departure bar, ”a federal regulation that bans many non-citizens who have physically left the United States from filing an application to reopen, even though many federal appeals courts have started to do so to invalidate the start of the rule around 2010). Sotomayor seemed particularly interested in the additional corrective measures and commented on the lack of information on the matter.

Eventually, some of the judges appeared to be looking into the wider implications of the case. Breyer suggested that only a “handful” of people might be affected by a decision in favor of Palomar-Santiago, a claim Garcia agreed with. Other judges attempted to assess the scope of the parties’ arguments, but both sides generally avoided taking definitive positions. Thomas, for example, asked Garcia if the outcome would be different if Palomar-Santiago had been represented by a lawyer during his original relocation process, and Alito asked Ross if the government believed that the exhaustion obligation would have been met if Palomar-Santiago one would have submitted an administrative request for reopening, but no appeal to the Immigration Board of Appeal.

It is unclear how the court leans. Judges Neil Gorsuch and Brett Kavanaugh did not ask questions from either party. Judges on different sides of the court’s political corridor both expressed their condolences to Palomar-Santiago and expressed a degree of skepticism about the ramifications of the material invalidity of the deportation order. Although an amicus letter from several immigration scholars outlined how racial animation motivated the enactment and continuation of the Re-Entry Act, there were no concerns about racial justice at all. The decision will likely depend on how a majority of judges assess the importance of the validity of the prior removal order, the impact of constitutional norms on the court’s reading of the statute, and the court’s assessment of the availability of administrative resources, according to Palomar-Santiago .