Immigration · Primary-source case analysis

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

By Aneeta Mishra and Timothy Chan

Published August 18, 2026

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, Supreme Court precedent established that an offense requiring only negligent or accidental conduct was not a crime of violence of the kind used to classify the DUI as an aggravated felony.

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 did not decide every possible issue concerning availability, deprivation, or unfairness on a different record. It required the litigation to proceed through the elements Congress enacted.

Key takeaways

• Obtain the complete removal, waiver, appeal, and criminal records.
• Analyze each section 1326(d) condition separately.
• Explain precisely which administrative and judicial remedies were genuinely available.
• Do not treat legal invalidity of the old removal ground as automatic dismissal.