The US Supreme Court ruled unanimously Monday against a non-US citizen who was contesting his indictment for unlawful re-entry into the country.
The case, US v. Palomar-Santiago, involved Refugio Palomar-Santiago, a Mexican citizen who became a lawful permanent resident in 1990. In 1998, an immigration judge found that Palomar-Santiago had committed an aggravated felony under the federal immigration laws when he was convicted for driving under the influence. Palomar-Santiago was found living in the US in 2018 and was indicted for illegally re-entering the country after removal.
Palomar-Santiago sought to dismiss his indictment on the ground that his original removal order was invalid under an earlier case of Leocal v Ashcroft. In that case, it was held that under the relevant federal statute, DUI convictions such as that of Palomar-Santiago’s are not aggravated felonies. He sought to dismiss the indictment on the basis that the US Court of Appeals for the Ninth Circuit had ruled that defendants like Palomar-Santiago, whose removal orders lacked a legal basis, did not have to satisfy the first two conditions of the federal statute criminalizing re-entry. The district court dismissed the indictment, and that finding was affirmed upon appeal to the Ninth Circuit.
But the Supreme Court disagreed and found that all three conditions in the statutory text are mandatory. With respect to the Ninth Circuit’s rule, Justice Sonia Sotomayor wrote, “when Congress uses ‘mandatory language’ in an administrative exhaustion provision, ‘a court may not excuse a failure to exhaust.'”
The decision reverses the Ninth Circuit’s precedent with respect to collateral challenges to re-entry convictions and an opinion analysis by Jennifer Koh at Scotusblog says the direct implications of the court’s ruling are likely quite narrow.