Supreme Court Issues Crimmigration Decision re Illegal Re-entry after Deportation

Supreme Court Issues Crimmigration Decision re Illegal Re-entry after Deportation

In United States v. Palomar-Santiago, the Supreme Court unanimously decided that the Immigration and Nationality Act (the “INA”) does not allow deported immigrants to reenter the United States without first showing that they have exhausted every option for judicial review, even if the original offense that led to their deportation was declared void.

Below is a brief summary of the facts of the case:

Palomar-Santiago obtained a green card in 1990. In 1991, Palomar-Santiago was convicted of a felony DUI and placed into deportation proceedings. In 1998, he was deported because the felony DUI conviction (at the time) was considered a crime of violence (a type of aggravated felony) under the INA. Six years later, the Supreme Court held that such convictions do not qualify as aggravated felonies.

Palomar-Santiago reentered the United States and resided here without proper authorization. In 2017, he was criminally charged with illegal reentry following deportation. Palomar-Santiago’s legal team collaterally attacked the removal (deportation) order saying that under 8 U.S.C. § 1326(d)(3), a defendant can challenge the original order of removal (deportation) by saying that it was fundamentally unfair, which can be shown by proving that the “removal should not have occurred”.

More about the Supreme Court Decision:

In an opinion written by Sonia Sotomayor, the Supreme Court decided that the immigration judge’s error did not excuse the noncitizen’s failure to comply with the mandatory exhaustion requirement also included in 8 U.S.C. § 1326(d). The noncitizen must also prove that they have exhausted all administrative options and have been deprived of judicial review opportunities in addition to proving that the removal was fundamentally unfair, as was required by the statute. All three requirements must have been satisfied and Palomar-Santiago did not satisfy these. As such, the Supreme Court held that Palomar-Santiago can be criminally charged.

Why is this case important?

The Supreme Court never analyzed whether there are sufficient pathways available for noncitizens to obtain a review of their prior deportation orders outside the context of illegal entry prosecution. As Justice Sotomayor declared, that this was outside the scope of what the court was deciding in this case. Many practitioners therefore believe that the decision DOES NOT affect the filing of a motion to reopen with immigration court for illegal re-entry after removal prior to receiving a criminal conviction.

Second, this decision serve as a reminder that both Supreme Court and circuit court crimmigration decisions, when based on a textual reading of the INA, constitute fundamental changes of law that mandate reopening of since closed removal cases.

To read a full copy of the decision, please click here.

Please call Blaszkow Legal at (703) 879-5910 if you have any questions related to illegal re-entry after deportation.

Tags: immigration

Recent Posts