DUI Can’t Trigger Removal Now, but Illegal Reentry Charge Still Sticks

A man who came back to the U.S. after a deportation that wouldn’t happen today failed to follow proper administrative channels, justices ruled.

The U.S. Supreme Court. (Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) — The Supreme Court ruled unanimously Monday against a Mexican immigrant who sought to challenge his illegal reentry charge on the basis that it was wrong to remove him in the first place. 

Refugio Palomar-Santiago was legal permanent resident, in other words a green card holder but not a U.S. citizen, when he was convicted in a California state court of felony driving under the influence. When an immigration judge ordered his removal on that basis in 1998, he waived his right to appeal and was deported the next day.

Come 2004, however, the Supreme Court ruled in Leocal v. Ashcroft that DUIs are not necessarily removable offenses, as ones involving merely accidental or negligent conduct do not qualify as crimes of violence. Palomar-Santiago’s DUI conviction would not have met the new standard. Another 13 years later, authorities found him in 2017 living again in the United States. When he was charged with illegal reentry, he persuaded the District Court and the Ninth Circuit that his removal was invalid under Leocal.

But the Supreme Court backed the government on Monday, saying “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,” Justice Sonia Sotomayor wrote for the court.

Sotomayor also wrote Monday Palomar-Santiago’s other requirements dictated by the statute included an unfair denial of his entry order and showings that the removal proceedings improperly denied him of judicial review.

“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 to be a removable offense,” she wrote. “The court holds that the statute does not permit such an exception.”

Sotomayor was similarly unreceptive to Palomar-Santiago’s reading of Ross v. Blake — a case surrounding the Prison Litigation Reform Act. While that decision gave deference to prisoners who did not have systems of relief readily available, Sotomayor said it did not affect Palomar-Santiago’s affirmative defense argument.

“Administrative review of removal orders exists precisely so noncitizens can challenge the substance of immigration judges’ decisions,” she wrote. “The immigration’s 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.”

Palomar-Santiago also argued that the invalidity of the order renders defendants unable to mount a challenge or collateral attack against them, but Sotomayor said this “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,” the ruling continues. “When a challenge to an order takes place in a separate ‘proceeding that has an independent purpose,’ such as a criminal prosecution, it is a ‘collateral attack.’”

Bradley Garcia, an O’Melveny & Myers attorney representing Palomar-Santiago, did not respond to a request for comment. Acting Solicitor General Elizabeth Prelogar also did not return a request for comment.


This story is developing …

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