Tuesday, May 25th, 2021

The Supreme Court throws a wrench into § 1326(d) motions in the Second Circuit

In United States v. Palomar-Santiago, No. 20-437 (May 24, 2021), Justice Sotomayor ruled for a unanimous Court that as a matter of statutory interpretation (1) each of 8 U.S.C. § 1326(d)’s three requirements must be satisfied; and that (2) a showing by the defendant that the deportation proceeding was “fundamentally unfair” under § 1326(d)(3) — because the immigration judge (IJ) mistakenly told him that he was removable as an aggravated felon due to his DUI conviction (this became error six years later in Leocal v. Ashcroft, 543 U.S. 1 (2004), holding that a DUI is not a § 16(b) “crime of violence” and thus not an “aggravated felony”) – does not suffice to dismiss a reentry indictment. The decision overrules Ninth Circuit law holding that “defendants are ‘excused from proving the first two requirements’ of § 1326(d) [– noncitizen defendants must show that they exhausted administrative remedies and were deprived of the opportunity for judicial review –]  if they were ‘not convicted of an offense that made them [removable].’” Op. 4 (quoting United States v. Ochoa, 861 F.3d 1010, 1015 (9th Cir. 2017)).

Palomar-Santiago lists a number of Circuits that disagreed with the Ninth Circuit’s approach, see Op. 4 fn. 1, but nowhere mentions the Second Circuit. Defense lawyers here nonetheless have cause for concern: The Second Circuit’s rule is somewhat similar to the Ninth’s. In a number of cases, this Circuit has deemed the exhaustion and judicial-review requirements of § 1326(d)(1) & (d)(2) satisfied where the noncitizen defendant’s failure to seek administrative or judicial review of the underlying deportation order resulted from the IJ’s erroneous statement about the noncitizen’s ineligibility for discretionary relief. See, e.g., United States v. Sosa, 387 F.3d 131, 136-37 (2d Cir. 2004) (subsection (d)(1) satisfied where noncitizen’s “failure to exhaust results from an invalid waiver of the right to an administrative appeal”); United States v. Calderon, 391 F.3d 370, 374-75 (2d Cir. 2004) (same); and United States v. Copeland, 376 F.3d 61, 70 (2d Cir. 2004)  (subsection (d)(2) satisfied where noncitizen’s failure to seek judicial review resulted from invalid waiver); United States v. Lopez, 445 F.3d 90, 97-99 (2d Cir. 2006) (same). Although these decisions are factually distinguishable from Palomar-Santiago – for instance, they involved procedural errors rather than a substantive mistake – and the Second Circuit’s rule is more nuanced than the Ninth’s, the Government is likely to argue that yesterday’s decision abrogates Second Circuit’s law on § 1326(d) motions.

Hope is not lost, however. Palomar-Santiago is solely statutory interpretation. Justice Sotomayor explicitly declined to reach the constitutional question – whether a prosecution that relies on a defective deportation order as an element of the offense violates Due Process – because it was not “raised below” and not “fairly encompassed by the question presented.” Op. 5-6 fn. 2.

And the constitutional question is a substantial one: United States v. Mendoza-Lopez, 481 U.S. 828 (1987) — the constitutional decision from which § 1326(d) derives — may be read to hold that convicting a defendant based on a defective deportation order violates Due Process.  The Court concluded there that where the IJ failed to inform (or misinformed) two noncitizens about their right to relief from deportation and then secured a waiver of the noncitizens’ right to appeal the deportation order (whether administratively or judicially), that order may not be used in a subsequent prosecution of the noncitizens. Thus, because the defendants in Mendoza-Lopez did not exhaust administrative remedies or seek judicial review, there is a viable argument that the fundamental unfairness of the proceeding itself suffices to invalidate a subsequent reentry prosecution, regardless of whether the noncitizens sought review (administrative or judicial) of the erroneously entered order.

Defendants in Mendoza-Lopez were two noncitizens arrested in the United States and charged with reentry after deportation under § 1326(a). They sought dismissal of the indictment on the ground that “they were denied fundamentally fair deportation hearings,” because “the Immigration Law Judge . . . accepted their unknowing waivers of the right to apply for [a discretionary remedy called] suspension of deportation” as well as their right to appeal the deportation orders. 481 U.S. at 831 & 840. The Court agreed that because of these flaws, “the Government may not [] rely on those orders as reliable proof of an element of a criminal offense” and dismissed the indictment. Id. at 840.

At their joint deportation hearing, the IJ at first “did not answer a question from one of [the noncitizens] regarding application for suspension of deportation.” Id. at 831 n.4. When he later tried to explain this form of relief, one of the noncitizens (as indicated by a question he asked) clearly “did not understand the concept of suspension of deportation, but [] the [IJ] failed to explain further.” Id. The IJ also did not tell the noncitizens “how much time he would allow [them] to apply for suspension.” Id. After the IJ entered deportation orders against both noncitizens, they did not seek administrative or judicial review of the orders1 and were deported to Mexico within a few days. Id. at 831-32.

On this record, the Supreme Court dismissed the reentry indictment against both noncitizen defendants. The deportation hearing violated Due Process because the IJ failed “to explain adequately their right to suspension of deportation or their right to appeal.” Id. at 839. And because those flaws “amounted to a complete deprivation of judicial review of the determination [to deport the noncitizens], that determination may not be used” in a subsequent reentry prosecution. Id. at 840.

As the Court explained, the IJ first “failed to advise [the noncitizens] properly of their eligibility to apply for suspension of deportation,” and then “permitted waivers of the right to appeal that were not the result of considered judgments by” them. Id. at 840. This meant that the noncitizens’ “waivers of their rights to appeal were not considered and intelligent,” and thus that they effectively “were deprived of judicial review of their deportation proceedings.” Id. As the Court concluded, “[b]ecause [the noncitizen defendants] were deprived of their rights to appeal, and of any basis to appeal since the only relief for which they would have been eligible was not adequately explained to them,” the deportation order “may not be used to support a criminal conviction.” Id. at 842

Congress subsequently codified Mendoza-Lopez’s holding in § 1326(d). As Senator Smith said, Section 1326(d) “is taken directly from the U.S. Supreme Court case of United States v. Mendoza–Lopez, 481 U.S. 828 (1987) . . . .” 140 Cong. Rec. S. 14544 (daily ed. Oct. 6, 1994). Because Congress intended § 1326(d) to codify Mendoza-Lopez, the requirements of this subsection must be construed with that decision in mind. And there is a strong argument that because Mendoza-Lopez sets the floor for what qualifies a constitutionally deficient deportation proceeding, a reentry indictment based on a deportation hearing at least as problematic as the one that occurred there must be dismissed.2

As the Second Circuit explained regarding § 1326(d)(1)’s administrative exhaustion requirement, “Because Section 1326(d) was intended as a response to, and codification of, Mendoza-Lopez, its administrative exhaustion requirement must be subject to at least one significant exception to render it consistent with that decision.” Sosa, 387 F.3d at 136. A “significant exception” was required because “there was almost certainly no administrative exhaustion in Mendoza-Lopez itself” — the noncitizens did not challenge the IJ’s deportation orders in any forum. Id. “Therefore, the exhaustion requirement must be excused where” — as in Mendoza-Lopez — “an alien’s failure to exhaust results from an invalid waiver of the right to an administrative appeal.” “Otherwise,” this Court explained, “Section 1326(d) would violate Mendoza-Lopez by prohibiting collateral attacks of deportation proceedings that were fundamentally unfair . . . .” Id.

The same for § 1326(d)(2)’s deprivation-of-opportunity-for-judicial-review requirement. As noted, Mendoza-Lopez dismissed the indictment even though the noncitizen defendants did not seek judicial review of their deportation orders, because the IJ’s failure to “advise [them] properly of their eligibility to apply for suspension of deportation” meant that their subsequent “waivers of the right to appeal [] were not the result of considered judgments” and effectively “deprived [them] of judicial review of their deportation proceedings.” 481 U.S. at 839-40. To conform to Mendoza-Lopez, therefore, § 1326(d)(2) must be deemed satisfied when the defendant’s failure to seek judicial review of the deportation order stemmed from the IJ’s erroneous advice about his right to relief from deportation. See, e.g., Lopez, 445 F.3d at 98 & 100 (holding that noncitizen defendant was “denied a realistic opportunity for judicial review within the meaning of § 1326(d)(2)” despite his failure to appeal deportation order because “[t]he fact that an administrative body told him that no [] relief existed is a powerful deterrent from seeking judicial relief”).


1 Though the opinion does not explicitly state, the noncitizens in Mendoza-Lopez likely affirmatively waived their right to appeal the IJ’s deportation order to the BIA at the deportation hearing. In any event, there is no dispute that the noncitizens did not seek review of that order either administratively to the BIA or judicially to a federal court.

2 Mendoza-Lopez is a constitutional decision, not a statutory one. Indeed, the Court first found that as a matter of statutory interpretation, § 1326 did not authorize a collateral attack on the underlying deportation order. 481 U.S. at 837 (“The text and background of § 1326 thus indicate no congressional intent to sanction challenges to deportation orders in proceedings under § 1326.”). Only thereafter did the Court rule that a collateral attack on the deportation order must be permitted to “comport with the constitutional requirement of due process.” Id.

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