1 (Slip Opinion) OCTOBER TERM, 2020

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

## SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v . PALOMAR-SANTIAGO

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 20–437. Argued April 27, 2021—Decided May 24, 2021
Respondent Palomar-Santiago, a Mexi can national living in the United

States, was convicted in California state court of felony DUI in 1988. At the time, lower courts understood that conviction to be an “aggra

vated felony” subjecting a noncitizen to removal from the United States. 8 U. S. C. §1227(a)(2)(A)(iii). Palomar-Santiago was removed following a hearing before an immigration judge and a waiver of his right to appeal. In 2017, Palomar-Santiago was found in the United States and indicted on one count of unlawful reentry after removal. See §1326(a). The statute crimina lizing unlawful reentry provides that a collateral challenge to the underlying deportation order may proceed only if the noncitizen firs t demonstrates that (1) “any admin

istrative remedies that may have b een available” were exhausted, (2) “the opportunity for judicial review” was lacking, and (3) “the entry of the order was fundamentally unfair.” §1326(d). Palomar-Santiago moved to dismiss the indictment on the ground that his prior removal order was invalid in light of the 2004 holding in Leocal v. Ashcroft , 543 U. S. 1, that felony DUI is not an aggravated felony. Following Ninth Circuit precedent, the District Cour t and Court of Appeals held that Palomar-Santiago was excused from proving the first two require

ments of §1326(d) because his felony DUI conviction had not made him removable. The District Court gran ted the motion to dismiss, and the Ninth Circuit affirmed.
Held : Each of the statutory requirements of §1326(d) is mandatory.

Pp. 5–8.

(a) The Ninth Circuit’s interpretati on is incompatible with the text of §1326(d), which provides that defendants charged with unlawful reentry “may not” challenge their underlying removal orders “unless” they “demonstrat[e]” each of three conditions. Section 1326(d)’s first2 UNITED STATES v. PALOMAR-SANTIAGO

Syllabus

two requirements are not satisfied just because a noncitizen was re

moved for an offense that should not have rendered him removable. The substantive validity of a remova l order is quite distinct from whether the noncitizen exhausted ad ministrative remedies or was de

prived of the opportunity for judicial review. P. 5. (b) Palomar-Santiago’s counterarguments are unpersuasive. First, he contends that further administrative review of a removal order is not “available” for purposes of §1326( a) when a noncitizen will not rec

ognize a substantive basis to challenge an immigration judge’s conclu

sion that a prior conviction renders the noncitizen removable. The im

migration judge’s error on the merits does not excuse the noncitizen’s failure to comply with a mandatory exhaustion requirement if further administrative review, and then judi cial review if necessary, could fix that very error. Ross , 578 U. S. 632, distinguished. Second, Palomar-Santiago contends that §1326(d)’s prerequisites do not apply when a defendant argues that a removal order was substan

tively invalid. There can be no “cha llenge” to or “collateral attack” on the validity of substantively flawed orders, he reasons, because such orders are invalid when entered. Th is position ignores the plain mean

ing of both “challenge” and “collateral attack.”

Lastly, Palomar-Santiago invokes the canon of constitutional avoid

ance. But this canon “has no application in the absence of statutory ambiguity.” United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 494. Here, the text of §1326(d) unambiguously fore

closes Palomar-Santiago’s interpretation. Pp. 5–7. 813 Fed. Appx. 282, reversed and remanded.

S OTOMAYOR , J., delivered the opinion fo r a unanimous Court._________________

_________________ 1 Cite as: 593 U. S. ____ (2021)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other form al errors, in order that corrections may be made before the preliminary print goes to press. 

## SUPREME COURT OF THE UNITED STATES

No. 20–437

UNITED STATES, PETITIONER v. REFUGIO PALOMAR-SANTIAGO

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 24, 2021]

J USTICE S OTOMAYOR delivered the opinion of the Court. In 1998, respondent Refugio Palomar-Santiago was re

moved from the United States based on a conviction for fel

ony driving under the influence (DUI). He later returned to the United States and was indicted on one count of un

lawful reentry in violation of 8 U. S. C. §1326(a). Between Palomar-Santiago’s removal and indictment, this Court held that offenses like his DU I conviction do not in fact ren

der noncitizens removable. Palomar-Santiago now seeks to defend against his unlawful-reentry charge by challenging the validity of his 1998 removal order. By statute, defendants “may not” bring such collateral at

tacks “unless” they “demonstrat[e]” that (1) they “ex

hausted any administrative remedies that may have been available to seek relief against the [removal] order,” (2) the removal proceedings “improperly deprived [them] of the op

portunity for judicial review,” and (3) “entry of the order was fundamentally unfair.” §1326(d). The question for the Court is whether Palomar-Santiago is excused from making the first two of these showings, as the Court of Appeals for the Ninth Circuit held, because his2 UNITED STATES v. PALOMAR-SANTIAGO

Opinion of the Court
prior removal order was premised on a conviction that was later found not to be a remov able offense. The Court holds that the statute does not permit such an exception.

I A Foreign nationals may be removed from the United States if they are convicted of an “aggravated felony.” 8 U. S. C. §1227(a)(2)(A)(iii). Among the offenses that qualify as aggravated felonies are “crime[s] of violence . . . for which the term of imprisonment [is] at least one year.” §1101(a)(43)(F). The term “crime of violence” includes “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop

erty of another.” 18 U. S. C. §16(a). Noncitizens facing removal generally receive a hearing before an immigration judge. Noncitizens can proffer de

fenses at that hearing, including that the conviction identi

fied in the charging document is not a removable offense. If unsuccessful, they may appeal to the Board of Immigration Appeals (BIA). See 8 U. S. C. §1229a(c)(5); 8 CFR §§1003.1(b), (d)(3), 1240.15 (2021). If unsuccessful again, they can seek review of the BIA’s decision before a federal court of appeals. See 8 U. S. C. §§1101(a)(47), 1252. Once a noncitizen is removed, it is a crime to return to the United States without authorization. §1326(a). The statute criminalizing unlawful r eentry did not originally al

low defendants to raise the invalidity of their underlying removal orders as an affirmative defense. This Court later held, however, that the statute “does not comport with the constitutional requirement of due process” insofar as it “im

pose[s] a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the [noncitizen] the deportation proceeding may have been.” United States

v. Mendoza-Lopez , 481 U. S. 828, 837 (1987). “[A]t a mini

mum,” “a collateral challenge to the use of a deportation3 Cite as: 593 U. S. ____ (2021)

Opinion of the Court proceeding as an element of a criminal offense must be per

mitted where the deportation proceeding effectively elimi

nates the right of the [noncitizen] to obtain judicial review.” Id. , at 839. Congress responded by enacting §1326(d). See Antiter

rorism and Effective Death Penalty Act of 1996 (AEDPA), §441, 110 Stat. 1279. Entitled “Limitation on collateral at

tack on underlying deportation order,” §1326(d) establishesthree prerequisites that defendants facing unlawfulreentry charges must satisfy before they can challenge their original removal orders. The statute provides: “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 oppor

tunity for judicial review; and “(3) the entry of the order was fundamentally unfair.” 8 U. S. C. §1326(d).

B Palomar-Santiago is a Mexican national who obtained permanent resident status in 1990. The following year, he was convicted in California state court of a felony DUI. In 1998, Palomar-Santiago received a Notice to Appear from the Immigration and Naturalization Service stating that he was subject to removal because his DUI offense was an ag

gravated felony. Following a hearing, an immigration judgeordered Palomar-Santiago’s removal on that ground. Palomar-Santiago waived his right to appeal and was removed to Mexico the next day. Six years later, this Court held in Leocal v. Ashcroft , 5434 UNITED STATES v. PALOMAR-SANTIAGO

Opinion of the Court

U. S. 1 (2004), that “a higher mens rea than the merely ac

cidental or negligent conduct involved in a DUI offense” is necessary for an offense to qualif y as a crime of violence. Id., at 11. Accordingly, Paloma r-Santiago’s DUI conviction was not a crime of violence under 18 U. S. C. §16(a), and so not an aggravated felony under 8 U. S. C. §1101(a)(43). Palomar-Santiago’s removal order thus never should have issued. See Rivers v. Roadway Express, Inc. , 511 U. S. 298, 312–313 (1994) (“A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction”). In 2017, Palomar-Santiago was found again living in the United States. A grand jury indicted him on one count of unlawful reentry after removal. Palomar-Santiago moved to dismiss the indictment on the ground that his prior re

moval order was invalid in light of Leocal . The District Court granted the motion, and the Court of Appeals for the Ninth Circuit affirmed. 813 Fed. Appx. 282 (2002). Both courts were bound by Ninth Circuit precedent providing that defendants are “excused from proving the first two requirements” of §1326(d) if they were “not con

victed of an offense that made [them] removable.” United States v. Ochoa , 861 F. 3d 1010, 1015 (2017). Other Courtsof Appeals do not excuse similarly situated unlawfulreentry defendants from meeting §1326(d)’s first two re

quirements. 1 This Court granted certiorari to resolve this disagreement. 592 U. S. ___ (2021).

——————

1 See, e.g., United States v. Parrales-Guzman , 922 F. 3d 706, 706–708 (CA5 2019); United States v. Watkins , 880 F. 3d 1221, 1224–1226 (CA11 2018) ( per curiam ); United States v. Gil-Lopez , 825 F. 3d 819, 823 (CA7 2016); United States v. Soto-Mateo , 799 F. 3d 117, 120–124 (CA1 2015); United States v. Rodriguez , 420 F. 3d 831, 833–835 (CA8 2005); United States v. Rivera-Nevarez , 418 F. 3d 1104, 1107–1111 (CA10 2005); United States v. Martinez-Rocha , 337 F. 3d 566, 568–570 (CA6 2003).5 Cite as: 593 U. S. ____ (2021)

Opinion of the Court

II 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) th ey 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 exhaus

tion 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. Without the benefit of the Ni nth Circuit’s extrastatutory exception, §1326(d)’s first tw o procedural requirements are not satisfied just because a noncitizen was removed for an offense that did not in fact render him removable. Indeed, the substantive validity of the removal order is quite dis

tinct from whether the noncitizen exhausted his adminis

trative remedies (by appealing the immigration judge’s de

cision to the BIA) or was deprived of the opportunity for judicial review (by filing a peti tion for review of a BIA deci

sion with a Federal Court of Appeals).

III Palomar-Santiago raises two counterarguments based on the text of §1326(d). 2 Neither is persuasive. First, he con

tends that further administrative review of a removal order

——————

2 Palomar-Santiago separately argues that the offense defined by §1326(a) includes as an element the defendant’s previous lawful removal such that unlawful removals cannot support a conviction. United States

v. Mendoza-Lopez , 481 U. S. 828, 834–835 (1987), rejected a similar ar

gument with respect to the pre-AEDPA version of §1326(a). PalomarSantiago now presses various distinctions between that case and this,6 UNITED STATES v. PALOMAR-SANTIAGO

Opinion of the Court is not “available” when an immigration judge erroneously informs a noncitizen that his prior conviction renders him removable. Noncitizens, the argument goes, cannot be ex

pected to know that the immigration judge might be wrong. Because noncitizens will not recognize a substantive basis for appeal to the BIA, that administrative review is not practically “available” under §1326(d)(1). 3 Palomar-Santiago looks to Ross v. Blake for support. That case addressed the Prison Litigation Reform Act, which requires that prisoners exhaust “such administrative remedies as are available” before suing in federal court. 42 U. S. C. §1997e(a). Ross held that whether such remedies are “available” turns on “the real-world workings of prison grievance systems,” and it ackn owledged that there are “cir

cumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief.” 578 U. S., at 643. Nothing in Ross , however, suggests that the substantive complexity of an affirmative defense can alone render further review of an adverse decision “unavail

able.” Administrative review of removal orders exists pre

cisely so noncitizens can challenge the substance of immi

gration judges’ decisions. The immigration judge’s error on the merits does not excuse the noncitizen’s failure to comply with a mandatory exhaustion requirement if further ad

ministrative review, and then judicial review if necessary, could fix that very error. Second, Palomar-Santiago contends that the §1326(d) prerequisites apply only when a defendant argues that his

—————— but the Court declines to address his arguments, which were neither raised below nor fairly encompassed by the question pr esented to this Court. See Brownback v. King , 592 U. S. ___, ___, n. 4 (2021) (slip op., at 5, n. 4).

3 On this theory, the unavailability of administrative review before the BIA would also mean that noncitizens like Palomar-Santiago do not have the “opportunity” for judicial review under §1326(d)(2), because they may not seek review of a removal order in federal court without first appeal

ing the order to the BIA. See 8 U. S. C. §1252(d)(1).7 Cite as: 593 U. S. ____ (2021)

Opinion of the Court removal order was procedurally flawed rather than sub

stantively invalid. There can be no “challenge” to or “collat

eral attack” on the validity of substantively flawed orders, he reasons, because such orders are invalid from the mo

ment they are entered. Palomar-Santiago’s position ig

nores the plain meaning of both “challenge” and “collateral attack.” Arguing that a prior removal order was substan

tively unlawful is a “challenge” to that order. See Black’s Law Dictionary 230 (6th ed. 1990) (“Challenge” means “[t]o object or except to” or “to put into dispute”). When a chal

lenge to an order takes place in a separate “proceeding that has an independent purpose,” such as a later criminal pros

ecution, it is a “collateral attack.” Id ., at 261. Palomar-Santiago last invokes the canon of constitu

tional avoidance. 4 Courts should indeed construe statutes “to avoid not only the conclusion that [they are] unconstitu

tional, but also grave doubts upon that score.” United States v. Jin Fuey Moy , 241 U. S. 394, 401 (1916). But this canon “has no application in the absence of statutory ambi

guity.” United States v. Oakland Cannabis Buyers’ Cooper

ative , 532 U. S. 483, 494 (2001). Here, the text of §1326(d) unambiguously forecloses Palo mar-Santiago’s interpreta

tion.

* * * The Court holds that each of the statutory requirements

——————

4 Palomar-Santiago argues that “a scheme that permits the results of an administrative proceeding to co nclusively establish a criminal of

fense” raises “due process and separa tion of powers problems,” which are “heightened when . . . the agency ne ver had the authority to issue the order in the first instance.” Brief for Respondent 15. The parties also strongly disagree about the sufficiency of the paths available for noncit

izens to obtain review of prior removal orders outside of an illegalreentry prosecution. To the extent Palomar-Santiago raises freestanding constitutional claims on these bases, they were not raised below and are outside the scope of the narrow question this Court granted certiorari to decide.8 UNITED STATES v. PALOMAR-SANTIAGO

Opinion of the Court of §1326(d) is mandatory. The judgment of the Court of Ap

peals for the Ninth Circuit is reversed, and the case is re

manded for further proceedings consistent with this opin

ion. It is so ordered.