United States v. Palomar-Santiago
The Supreme Court unanimously ruled that a man wrongly deported from the United States must still satisfy all three legal requirements set by Congress before he can challenge that deportation in a later criminal case for unlawful reentry.
The decision resolves a split among federal courts and means that immigrants cannot shortcut the appeal process even when the legal basis for their deportation was later found to be a mistake.
How it got here: A federal district court dismissed the unlawful-reentry indictment; the Ninth Circuit affirmed; the government asked the Supreme Court to resolve a split among federal courts of appeals, and the Court agreed to hear it.
The Case in Depth
What happened
Refugio Palomar-Santiago, a Mexican national with permanent resident status, was deported in 1998 after a California felony DUI conviction was classified as an "aggravated felony" making him removable. He waived his right to appeal and was removed. Six years later, the Supreme Court ruled that DUI offenses are not aggravated felonies, meaning his deportation should never have happened. He returned to the US and was arrested in 2017 for unlawful reentry.
The question before the Court
Must a noncitizen charged with illegally returning to the United States satisfy all three statutory requirements before challenging the deportation order that led to his original removal — even if that deportation order was later found to have been legally wrong?
The Court's answer
Yes — all three requirements must be satisfied. Federal law bars a defendant charged with unlawfully returning to the US from challenging the deportation order behind his removal unless he proves three things: that he used available administrative appeals, that he was denied a fair opportunity for judicial review, and that the deportation order was fundamentally unfair. The statute's text is mandatory — defendants "may not" bring such a challenge "unless" they demonstrate each condition — and the Court found no basis for the Ninth Circuit's judge-made exception.
The fact that Palomar-Santiago's deportation rested on a legal error (a DUI conviction later found not to qualify as a removable offense) does not excuse him from the first two requirements. Those requirements ask about the appeals process, not the merits of the underlying charge. An immigrant who did not appeal through available channels cannot bypass the statute simply because the government was wrong about the offense that triggered removal.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Immigrants facing criminal charges for unlawful reentry cannot automatically get those charges dropped just because their original deportation was based on a legal error. They must still show that they tried to appeal the deportation through proper channels at the time. People who waived their appeals and were removed — even wrongly — face a harder road to getting their criminal cases dismissed.
What changes now
The case is sent back to the Ninth Circuit to be reconsidered under the rule the Supreme Court announced: Palomar-Santiago must satisfy all three requirements of §1326(d) to challenge his 1998 deportation order. The Court did not decide whether he can ultimately meet those requirements, or whether his broader constitutional arguments have merit — those questions remain open on remand.
What this does not decide
The Court did not decide whether Palomar-Santiago can actually satisfy the three requirements, or whether his freestanding constitutional arguments (that the scheme violates due process and separation of powers) have merit. It also declined to address his separate argument that §1326(a) itself requires a lawful prior removal as an element of the offense.
How the Court got there
The legal reasoning, step by step
- The starting point was the plain text of §1326(d), which says defendants in an unlawful-reentry case 'may not' challenge the prior deportation order 'unless' they prove all three prerequisites. The requirements are joined by 'and,' meaning each one is independently mandatory — a point the Court emphasized by noting that when Congress uses mandatory language in an exhaustion requirement, courts are not free to excuse noncompliance.
- The Ninth Circuit had created an extra-textual exception: if a noncitizen was removed for an offense that should not have made him removable, he was automatically excused from proving the first two requirements. The Court found this exception had no basis in the statute — the substantive correctness of the deportation order is a distinct question from whether the noncitizen pursued available administrative appeals.
- Palomar-Santiago argued that further administrative appeal was not 'available' to him because, not knowing the immigration judge was wrong, he had no reason to appeal. He drew on Ross v. Blake (a 2016 case holding that prisoners need not exhaust remedies that are genuinely unavailable). The Court distinguished Ross: administrative appeals of deportation orders exist precisely to correct legal errors on the merits, so the judge's error did not make that appeal process unavailable — it made it all the more useful.
- Palomar-Santiago also argued that §1326(d) only covers 'challenges' to procedurally flawed orders, not to orders that were substantively invalid from the start. The Court rejected this as contrary to the ordinary meaning of the word 'challenge,' which covers any objection to a prior order, and 'collateral attack,' which refers to any challenge raised in a separate proceeding (like a later criminal prosecution).
- Finally, Palomar-Santiago invoked the canon of constitutional avoidance — the principle that courts should read statutes to sidestep serious constitutional questions. The Court held this canon has no role here because §1326(d)'s text is unambiguous; there is no alternative reading to choose between, so there is nothing to 'avoid.'
Doctrinal impact
Cases affected by this decision
Distinguishes Ross v. Blake (578 U.S. 632)
The rule that unavailable remedies need not be exhausted does not apply simply because a noncitizen did not know the immigration judge was wrong.