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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
removed from the United States based on a conviction for felony
driving under the influence (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). Between
Palomar-Santiago’s removal and indictment, this 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 challenging the validity of his 1998
removal order.
By statute, defendants “may not” bring such
collateral attacks “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 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 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 property of
another.” 18 U. S. C. §16(a).
Noncitizens facing removal generally receive a
hearing before an immigration judge. Noncitizens can proffer
defenses at that hearing, including that the conviction identified
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 allow
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 “impose[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 minimum,” “a collateral challenge
to the use of a deportation proceeding as an element of a criminal
offense must be permitted 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
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
§441, 110Stat. 1279. Entitled “Limitation on collateral attack 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 opportunity
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 aggravated felony. Following a
hearing, an immigration judge ordered Palomar-Santiago’s removal on
that ground. Palomar-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 U.S. 1
(2004), that “a higher
mens rea than the merely accidental
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 removal 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 (2002).
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 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 first 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
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 exhaustion 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
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 review (by filing 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 contends that further
administrative review of a removal order is not “available” when an
immigration judge erroneously informs a noncitizen that his prior
conviction renders him removable. Noncitizens, the argument goes,
cannot be expected 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 “circumstances 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
“unavailable.” Administrative review of removal orders exists
precisely so noncitizens can challenge the substance of immigration
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 administrative 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
removal order was procedurally flawed rather than substantively
invalid. There can be no “challenge” to or “collateral attack” on
the validity of substantively flawed orders, he reasons, 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.” Arguing 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 independent 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 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) unambiguously
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
Appeals for the Ninth Circuit is reversed, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.
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