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Deported Green Card Holders in Tough Spot at High Court (1)

April 27, 2021, 5:30 PMUpdated: April 27, 2021, 8:15 PM

The U.S. Supreme Court seemed primed after oral argument to rule against former green card holders unlawfully deported due to a change in federal law, suggesting they must continue to pursue their claims even if it seems like a nearly impossible climb.

Justice Clarence Thomas got right to the point on Tuesday during the telephone proceeding, wondering why the Justice Department was even “pursuing this case if you would say today” the Mexican national at the center of the dispute “would not be deported.”

And the more liberal justices suggested a conviction leading to deportation based on an invalid order raised constitutional issues—or at least made it impossible to challenge it before the executive branch.

“You don’t see a constitutional issue here, but I do,” Justice Sonia Sotomayor told the government’s lawyer.

But a majority of the justices seemed to think the law was clear and there were ways for Refugio Palomar-Santiago in this case to follow the statutory process for challenging his previous removal from the U.S.

There “are a lot of areas where the door closes, and you lose the right to go back and challenge prior determinations,” Chief justice John Roberts said. The argument here is that every time there’s a subsequent change in the law, “we have to go and unscramble the eggs.”

The outcome in the court’s latest immigration case is likely to affect only a handful of people. But O’Melveny’s Brad Garcia, who represented Palomar-Santiago before the justices, said the cases involved are the most extreme instances.

Entry vs. Reentry

Palomar-Santiago, then a green card holder, was deported in 1998 after being convicted of driving under the influence. Years later, in Leocal v. Ashcroft, the Supreme Court said a DUI can’t be the basis for deporting a lawful permanent resident—or green card holder.

The government now wants to prosecute Palomar-Santiago for reentering the country after being removed.

Unlawful reentry carries harsher penalties than unlawful entry, which doesn’t require that the noncitizen have been previously removed.

The San Francisco-based U.S. Court of Appeals for the Ninth Circuit said the government can’t prosecute reentry where the previous deportation order was invalid. That’s so despite that the immigration laws set out a procedure for challenging invalid orders—a procedure everyone agrees Palomar-Santiago either didn’t or couldn’t pursue.

The Supreme Court seemed likely to undo that ruling.

Prosecutions for illegal reentry soared under the Trump administration’s hard-line immigration policies. Some 25,426 non-citizens were charged with illegal reentry, an increase of nearly 50% since fiscal year 2017.

The Biden administration took the same stance in this case as the previous administration—something that’s likely in more run-of-the-mill immigration and criminal cases.

What Could Have Been

The case pits “textualism"—the idea that judges should follow the text of a law—against ideas of fundamental fairness.

Federal immigration law requires non-citizens challenging the validity of a removal order to show three things: that they exhausted administrative remedies, there was no opportunity to appeal, and the action was “fundamentally unfair.”

Justice Department lawyer Erica Ross said Palomar-Santiago hadn’t sufficiently challenged his previous order, noting that he waived his right to appeal the original removal directive.

Justice Elena Kagan, however, wondered if Palomar-Santiago and other non-citizen could really have appealed given that there were Board of Immigration Appeals rulings going the other way and saying that DUI conviction could be the basis of removal.

Garcia noted the dispute involves a legal issue known as the categorical approach, the process of trying to match state law convictions—the requirements of which can vary widely among the states—with “generic” federal convictions for immigration purposes.

“Administrative remedies were not available because no ordinary non-citizen could understand and formulate the complex legal arguments required to challenge BIA precedent under the categorical approach,” he argued.

Ross countered that that wasn’t enough to waive the statutes requirements.

“For lack of a better way of expressing it, Mr. Palomar-Santiago could have been Mr. Leocal, had he chosen to exhaust his administrative remedies,” Ross said, referring to the petitioner in the center of the Supreme Court’s ruling that DUI’s didn’t qualify for deportation.

But Sotomayor wondered whether it was fair to expect immigrants to press these claims despite the dim prospect of victory.

The “reality is that when this conviction happened, neither this circuit nor any court had yet ruled in his favor,” Sotomayor said, suggesting that noncitizens have a due process right to challenge that illegally entered order, even if they weren’t the one to press the claims all the way to the Supreme Court.

The case is United States v. Palomar-Santiago, U.S., No. 20-437, argued 4/27/21.

(Updates with additional details from the argument. )

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at