An illegal immigrant who was deported from the United States for drunk driving and then illegally returned had his request to avoid deportation shot down by the Supreme Court, Breitbart reported.
Justice Sonia Sotomayor authored the unanimous, 9-0 opinion, which held that Mexican national Refugio Palomar-Santiago failed to meet the statutory requirements to challenge his deportation order.
Palomar-Santiago obtained a green card in 1990 and was convicted of felony drunk driving in California a year later. In 1998, he received his removal order. He waived his right to appeal and was deported to Mexico.
Later, Palomar-Santiago returned to the United States and was indicted in 2017 for illegal re-entry. But in 2004, the Supreme Court held in Leocal v. Ashcroft that drunk driving is not necessarily an “aggravated felony” warranting deportation.
Supreme Court reverses appeal
Palomar-Santiago cited that case to challenge his original removal order, but the Supreme Court was not persuaded and reversed a ruling of the Ninth Circuit which had sided with Palomar-Santiago.
The Supreme Court shot down Palomar-Santiago’s challenge on the grounds that he failed to exhaust his options of appealing the original removal order or otherwise did not show that he was denied due process.
These criteria are “mandatory” regardless of whether the original removal order was actually justified, Sotomayor wrote.
In other words, that drunk driving may not have been a crime meriting Palomar-Santiago’s removal does not excuse him from meeting the criteria, but that is exactly what the Ninth Circuit did with its erroneous decision.
“When Congress uses ‘mandatory language’ in an administrative exhaustion provision, ‘a court may not excuse a failure to exhaust,'” Sotomayor wrote. “Yet that is what the Ninth Circuit’s rule does.”
Defendants charged with illegal re-entry have to prove three things to challenge their original removal orders: that they have “exhausted any administrative remedies,” have been “deprived . . . of the opportunity for judicial review,” and that “entry of the order was fundamentally unfair.”
The first two criteria are not “satisfied just because a noncitizen was removed for an offense that did not in fact render him removable,” Sotomayor wrote. As noted earlier, Palomar-Santiago waived his right to appeal the original removal order in 1998.
“The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion,” Sotomayor wrote.