Unlawful Reentry Statute Means What It Says

The U.S. Supreme Court decided this morning that a statute regarding illegal reentry to the United States after being deported means what it says. Justice Sotomayor wrote the unanimous opinion of the Court in United States v. Palomar-Santiago, No. 20-437.

When an alien has been “removed” (i.e., deported), it is a crime to return without authorization. See 8 U.S.C. § 1326(a). This is a more serious crime than illegal entry alone, and it is punishable by up to two years in prison.

Another section of the code requires that aliens who commit “aggravated felonies” must be removed, with few exceptions. That is a valid rule on its face, but the definition of “aggravated felony” is a mess, as I have noted on this blog more than once.

What if an alien is deported by courts interpreting that messy definition, and a later case clarifies that the crime he committed is not an “aggravated felony” after all? Is he still guilty of violating § 1326 if he just goes ahead and reenters illegally? One would think so. The reentry is still illegal regardless of the prior deportation, and it’s a matter of degree. The judgment of deportation still stands until it is set aside.

Congress has already considered the precise question in § 1326(d):

In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order . . . unless the alien demonstrates that—

(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;

(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and

(3) the entry of the order was fundamentally unfair.

Does “and” mean “and,” or does it mean “or”?

If that strikes you as an easy question, you’re catching on. All the circuit courts of appeals but one that have considered this question decided that the statute means what it says, and the defendant must meet all three requirements. From today’s opinion:

The Ninth Circuit’s interpretation is incompatible with the text of §1326(d). That section provides that defendants charged with unlawful reentry “may not” challenge their underlying removal orders “unless” they “demonstrat[e]”that three conditions are met: (1) they have “exhausted any administrative remedies,” (2) they were “deprived . . . of the opportunity for judicial review,” and (3) “the entry of the order was fundamentally unfair.” 8 U. S. C. §1326(d). The requirements are connected by the conjunctive “and,” meaning defendants must meet all three. When Congress uses “mandatory language” in an administrative exhaustion provision, “a court may not excuse a failure to exhaust.” Ross v. Blake, 578 U. S. 632, 639 (2016). Yet that is what the Ninth Circuit’s rule does.


In other action, the Monday orders list did not take up any new cases for full briefing and argument.

In Johnson v. Precythe, No. 20-287, Justices Breyer and Sotomayor dissent from the Court’s turning down another Missouri murderer claiming that his unique condition makes lethal injection with pentobarbital “cruel and unusual” for him, even though it is the best method available generally.