Judges assess available defenses against criminal reintegration of some immigrants
By Jennifer Koh
on Apr 28, 2021
Bradley Garcia pleads for Refugio Palomar-Santiago. (Link Art)
The court heard the argument on Tuesday at United States v. Palomar-Santiago, a case involving the ability of some non-citizens to defend themselves against federal charges for re-entering the country after their deportation. The charge of criminal readmission requires the prior existence of a removal order seized by a federal immigration agency. In the case of Refugio Palomar-Santiago, this earlier deportation order existed. However, the 2004 Supreme Court decision in Leocal v. Ashcroft, decided after the entry of his deportation order, revealed that the decision of the administrative agency to expel him was not justified by law. Nonetheless, federal prosecutors filed a readmission charge against him based on that same order. The question is whether Palomar-Santiago can defend himself against the reinstatement pursuit on the basis of the invalidity of the initial removal order, or whether his defense must fail because he cannot meet the additional requirements set out by law – namely, that he “exhausted” his options to bring an administrative appeal against the removal order, and that the initial proceedings deprived him of judicial review.
The government case, presented by Assistant Solicitor General Erica Ross, focused on the wording of the statutory provision governing the ability of a non-citizen to challenge the validity of a prior removal order upon appeal. a continuation of reinstatement. This statute, 8 USC § 1326 (d), was enacted by Congress after the 1987 court ruling United States v. Mendoza-Lopez, and according to Ross only provides a “narrow escape hatch” for such challenges. The government’s general theory is that Congress reasonably foresaw the additional requirements (administrative exhaustion and deprivation of judicial review) to apply even in cases like Palomar-Santiago, where the earlier removal order was found to be lacking. legal basis. Ross pointed out that Congress seeks to prevent people from “taking justice into their own hands” by re-entering the country and only challenging the earlier order on an indictment of re-entry.
Pleading for Palomar-Santiago, Bradley Garcia asserted that section 1326 (d) – which describes how to “challenge the validity of the deportation order” – contains an implicit assumption that the deportation order is, in fact, valid. . Accordingly, Congress did not intend to prosecute reinstatement based on removal orders. already deemed invalid to continue, and therefore all statutory requirements need not apply. According to this reasoning, reinstatement proceedings based on an invalid removal order “simply cannot continue”. Throughout his argument, Garcia has pointed out the material invalidity of the earlier order. But even assuming that non-citizens must meet the requirements of Article 1326 (d), he argued that Palomar-Santiago had already satisfied them because the requisite administrative remedies were hardly available to him.
Several judges considered the meaning and significance of the earlier removal order found to be invalid. Chief Justice John Roberts asked for the government’s view on Palomar-Santiago’s qualification of the expulsion measure as void ab initio (ie null from the start), and Justice Clarence Thomas asked whether the government had admitted that the underlying removal order could be characterized as “fundamentally flawed”. The government agreed that under Leocal, Palomar-Santiago could not be deported for the same conviction for driving under the influence that had served as the basis for his previous deportation order. However, Ross refused to characterize the removal order as “legal nullity” or equivalent to the immigration agency which has no jurisdiction at all to seize the order. Instead, Ross insisted that the flaws that existed in the earlier ordinance did not exempt Palomar-Santiago from the need to meet the strict requirements of Section 1326 (d). Judge Stephen Breyer drew a comparison with the criminal context, wondering if anomalous results ensue given that someone who is convicted of an offense that the courts later determine that the government did not have the power to criminalize may seek habeas review, but in this case a person has been “put in prison”. In response, Ross distinguished the Palomar-Santiago case from those in which actual innocence is asserted, and argued that “an error-free removal order is not an element” necessary to prosecute someone for. criminal reinstatement.
Speaking to Garcia on similar issues related to the validity of the earlier order, Roberts expressed skepticism about the argument that once a change or clarification in the law occurs, the right to a legal recourse is automatic – a position the Chief Justice suggested akin to, “We now know that was wrong, so we have to go back and … decipher the egg.” Likewise, Judge Samuel Alito pointed out to Garcia that, despite Garcia’s allegations regarding the invalidity of the order, his client’s defense still appeared to be subject to the requirements of Section 1326 (d), which describes a “Dispute [to] the validity of the expulsion order. Breyer asked if calling the earlier Palomar-Santiago order illegal would only be true if “he wasn’t really driving under the influence 35 years ago.” Garcia stressed the undisputed nature of the invalidity of the expulsion measure and the problem of imposing an additional sentence on the basis of an order that the government “knows is invalid”.
The Palomar-Santiago briefing argued that underlying constitutional concerns should shape the court’s reading of the law and, while such considerations surfaced on Tuesday, they did not dominate the argument. Thomas and Judge Sonia Sotomayor asked Ross about the government’s position on these constitutional concerns, which she largely dismissed as irrelevant given the clarity of the law. Sotomayor expressed his opinion that constitutional issues were indeed present in the case, given the lack of possibilities for a non-citizen to overturn a removal order found to be invalid. Ross emphasized the government’s view that Congress is authorized to criminalize offenses based on administrative orders when a person does not use available procedures to challenge those orders. On this point, Palomar-Santiago’s lawyer sought to limit the main case cited by the government, Yakus v. United States, to its war context.
Since one of the requirements of section 1326 (d) is administrative exhaustion, the judges questioned whether exhaustion in the form of an appeal to the Immigration Appeals Board was practically accessible. to non-citizens like Palomar-Santiago. Judge Elena Kagan posed questions to both parties about how the immigration judge’s potential misrepresentation would impact the availability of administrative exhaustion, leading to various exchanges on the application of the exemptions to the administrative exhaustion and on the significance of the availability of a review process. Thomas, Kagan and Judge Amy Coney Barrett asked Garcia whether the complexity of his client’s potential legal claim on appeal – which Garcia said would require mastery of “legal doctrines that are mystifying and opaque” – should be viewed as a factor to assess whether administrative exhaustion was available. Garcia argued that the availability of administrative remedies should be an individualized analysis that takes into account legal complexity, among other factors, and also drew attention to the practical obstacles faced by non-citizens, as detailed in a brief. amicus submitted by the National Immigration Project.
Alito and Sotomayor sought to better understand the options Palomar-Santiago could have pursued other than a direct administrative remedy to remedy the flaw in his removal measure. The government stressed that apart from the administrative appeal, it could have filed a petition for reopening or sought discretionary relief from the attorney general. However, Garcia claimed that the motion to reopen Palomar-Santiago would have been “banned by [federal] regulation ”for a time (presumably referring to“ the post-departure ban, ”a federal regulation that prohibits many non-citizens who have physically left the United States from filing a petition for reopening, although many courts federal appeals began to strike down the rule starting around 2010). Sotomayor seemed particularly interested in the additional remedies and commented on the lack of information on the matter.
Finally, some judges seemed to be looking for the broader implications of the case. Breyer suggested that only a “handful” of people could be affected by a move in favor of Palomar-Santiago, a claim Garcia agreed with. Other judges have sought to assess the scope of the parties’ arguments, but both parties have generally avoided providing definitive positions. Thomas, for example, asked Garcia if the outcome would be different if Palomar-Santiago had been represented by counsel during his initial removal proceedings, and Alito asked Ross if the government believed the exhaustion requirement would have been met if Palomar-Santiago had filed an administrative request to reopen, but not an appeal to the Board of Immigration Appeals.
We don’t know how the court looks. Judges Neil Gorsuch and Brett Kavanaugh did not ask either party any questions. Judges on different sides of the court’s political aisle have both expressed sympathy for Palomar-Santiago and expressed some skepticism about the implications of the removal order’s substantial invalidity. Although an amicus brief from several immigration law scholars detailed how racial animosity motivated the enactment and maintenance of readmission status, issues of racial justice did not arise at all. The decision will likely depend on how a majority of judges perceive the importance of the validity of the previous removal order, the influence of constitutional standards on the court’s reading of the law and the court’s assessment of the law. extent to which administrative remedies were available. in Palomar-Santiago.