Justices Question Broadening Reentry Paths For Deportees

By Sameer Rao | April 27, 2021, 9:32 PM EDT

Several U.S. Supreme Court justices on Tuesday seemed opposed to widening the path to reentry for immigrants who were previously deported for a crime that would no longer merit deportation.

During oral arguments for the case involving Refugio Palomar-Santiago, a former permanent resident from Mexico deported for felony driving under the influence in the 1990s, several justices suggested that he had ample avenues to seek administrative relief from his earlier deportation.

The case asks if deportees like Palomar-Santiago can void their initial removal solely by arguing that the law no longer sees their original crime as meriting deportation, without demonstrating they've otherwise exhausted their options for judicial review.

"Your proposition seems to me to be limited to, you know, we now know this was wrong, so we have to go and unscramble the — unscramble the eggs," Chief Justice John G. Roberts said during arguments.

Much of the discussion involved a specific statute in the U.S. Code that requires all individuals challenging their removals to prove that they have exhausted all administrative options and been deprived of judicial review opportunities, as well as that the deportation order was unfair. Erica B. Ross, an assistant to the solicitor general, argued on the U.S. Department of Justice's behalf that this statute and other precedents meant that Palomar-Santiago did not do enough to challenge his removal before he was indicted in 2017 for unlawful reentry.

"It is certainly true that respondent had other mechanisms to seek relief rather than, as I noted earlier, simply taking the law into his own hands and reentering despite an extant removal order that he had never challenged," she told the justices.

She reiterated this view when responding to Justice Clarence Thomas, who asked if the government agreed with the respondent's argument that Palomar-Santiago's deportation "was wrong," as he described it.

"We agree, your honor, that under this court's decision in [Leocal v. Ashcroft ] — of course, DUI is not an aggravated felony," she said. "But, as I was just answering the chief justice, I think we disagree that that makes it a legal nullity that respondent was simply entitled to ignore."

Ross also told Thomas that the case did not present constitutional issues — a point that did not sway Justice Sonia Sotomayor, who argued that the procedures Ross said Palomar-Santiago could have taken do not amount to legal redress.

"You've given me a lot of potential mechanisms in which an alien might be able to get this order reversed, but I don't know that there's a legal opportunity to do that," she said. "Meaning, it all depends on a whole series of discretion."

An argument by Bradley N. Garcia of O'Melveny & Myers LLP to uphold the Ninth Circuit appeals court's decision, which sustained a district court ruling that Palomar-Santiago satisfied the burden of proof to invalidate his removal, encountered questions about its broader applicability. Justice Stephen Breyer, who had asked Ross about anomalies with other convictions under outdated standards, questioned if this could impact even more deportees whose crimes were considered violent.

"If you lose, I've tried to find out how many people are there, likely, that would be subject to orders based on crimes of violence or whatever that term is, in your client's position, and I get under 1,000," he said. "And it must be a very small percentage of those — maybe one, maybe two, maybe three people like your client, who fall within the category of, later on, it was determined it wasn't a crime of violence, like driving under the influence. So, does your case affect more than a handful of people?"

"It is certainly not a particularly broad rule, especially as to the categories that we are relying on today, where it's made absolutely clear by a prior decision that the removal was unlawful," Garcia responded.

Garcia once worked as a clerk for Justice Elena Kagan, who asked both attorneys about their cases' substance and underlying claims. For instance, she asked Garcia if this is a case concerning legal misrepresentation or an "opaque" administrative process.

"I think it's most accurate to say that we think it's a combination of the two," Garcia responded.

A spokesperson for O'Melveny & Myers LLP declined to make Garcia or his colleagues available for an interview or comment. The Department of Justice did not immediately return a request for comment.

The government is represented by acting solicitor general Elizabeth B. Prelogar of the U.S. Department of Justice.

Palomar-Santiago is represented by Bradley N. Garcia, Jeffrey L. Fisher, Anna N. Mohan and Grace E. Leeper of O'Melveny & Myers LLP and Rene L. Vallardes, Cristen C. Thayer, Aarin E. Kevorkian and Ellesse Henderson of the Federal Public Defender Office, District of Nevada.,

The case is United States of America v. Refugio Palomar-Santiago, case number 20-437, in the U.S. Supreme Court.

--Editing by Bruce Goldman.

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