Immigration · Primary-source case analysis

Palomar-Santiago: An Invalid Removal Predicate Did Not Excuse Section 1326(d)’s Requirements

Decision: United States v. Palomar-Santiago, 593 U.S. 321 (2021).

United States v. Palomar-Santiago arose after a man removed on the theory that his DUI conviction was an aggravated felony returned to the United States and faced prosecution under 8 U.S.C. section 1326.

Later precedent showed the removal ground was wrong

After the original removal, Leocal v. Ashcroft, 543 U.S. 1 (2004), established that the accidental or negligent conduct involved in such a DUI did not make it a crime of violence. Palomar-Santiago applied that intervening decision. Palomar-Santiago, slip opinion, pages 3–4.

Section 1326(d) states three mandatory conditions

A collateral attack requires exhaustion of available administrative remedies, improper deprivation of judicial review, and fundamental unfairness in entry of the removal order.

Courts could not create a categorical exception

The Ninth Circuit excused the first two conditions when the conviction did not legally make the person removable. The Supreme Court held that the statutory text permits no such wholesale bypass.

The dismissal was reversed and remanded

The Court required the litigation to proceed through the elements Congress enacted.

Key takeaways

Have your removal record evaluated

Our office can review your immigration judge transcript, Notice to Appear, and prior appeal records to assess section 1326(d) collateral attack options. Bring all original removal orders and criminal docket sheets to your consultation. Call (949) 343-9735 or email office@mishrax.com.