Wednesday, January 13, 2021
On Friday, January 8, the U.S. Supreme Court granted certiorari in a criminal case of considerable interest to the immigration law community.
United States v. Refugio Palomar-Santiago, No. 20-437, involves a defendant who was charged with unlawfully entering the United States after a prior deportation pursuant to 8 USC § 1326. Mr. Palomar-Santiago, who is a Mexican national and lawful permanent resident, was deported from the United States after being convicted for driving under the influence, a crime the government characterized in his deportation proceeding as an “aggravated felony.” After reentering the United States, he was charged with illegal reentry, a federal crime. The problem was that his DUI conviction was no longer a crime that should result in deportation. See United States v. Trinidad-Aquino, 259 F.3d 1140, 1146-47 (9th Cir. 2001). He challenged the government’s charge by mounting a collateral attack to his prior deportation in the criminal case. Under 8 U.S.C. § 1326(d), a defendant may challenge the validity of the prior removal order by showing that the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d)(3).
On appeal, the Ninth Circuit affirmed the district court’s dismissal of the charge, agreeing that Mr. Palomar-Santiago could not be convicted of entering after deportation because he was wrongfully deported. See 813 F. App’x 282 (9th Cir. May 14, 2020).
The government appealed.
The question presented to the U.S. Supreme Court is whether a defendant removed for a criminal conviction that would no longer be considered a removable offense under current law can satisfy the requirements for collateral attack.