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(Slip Opinion) OCTOBER TERM, 2020 1 

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 Mexican 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 “aggravated 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 criminalizing unlawful reentry provides 

that a collateral challenge to the underlying deportation order may 

proceed only if the noncitizen first demonstrates that (1) “any administrative remedies that may have been 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 Court and Court of Appeals held that

Palomar-Santiago was excused from proving the first two requirements of §1326(d) because his felony DUI conviction had not made him 

removable. The District Court granted 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 interpretation 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 first 
 

 

 

 

 

 

2 UNITED STATES v. PALOMAR-SANTIAGO 

Syllabus 

two requirements are not satisfied just because a noncitizen was removed for an offense that should not have rendered him removable. 

The substantive validity of a removal order is quite distinct from 

whether the noncitizen exhausted administrative remedies or was deprived 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 recognize a substantive basis to challenge an immigration judge’s conclusion that a prior conviction renders the noncitizen removable. The immigration 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 judicial 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 substantively invalid. There can be no “challenge” to or “collateral attack” on

the validity of substantively flawed orders, he reasons, because such 

orders are invalid when entered. This position ignores the plain meaning of both “challenge” and “collateral attack.” 

Lastly, Palomar-Santiago invokes the canon of constitutional avoidance. 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 forecloses Palomar-Santiago’s interpretation. Pp. 5–7. 

813 Fed. Appx. 282, reversed and remanded. 

SOTOMAYOR, J., delivered the opinion for a unanimous Court. 
 

 

 

_________________ 

_________________ 

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

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, Washington, D. C. 20543, of any typographical or other formal 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]

 JUSTICE SOTOMAYOR delivered the opinion of the Court. 

In 1998, respondent Refugio Palomar-Santiago was removed from the United States based on a conviction for felony driving under the influence (DUI). He later returned 

to the United States and was indicted on one count of unlawful reentry in violation of 8 U. S. C. §1326(a). Between 

Palomar-Santiago’s removal and indictment, this Court

held that offenses like his DUI conviction do not in fact render 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 attacks “unless” they “demonstrat[e]” that (1) they “exhausted any administrative remedies that may have been

available to seek relief against the [removal] order,” (2) the 

removal proceedings “improperly deprived [them] of the opportunity 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 his 
 

 

2 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 removable 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 property of another.” 18 U. S. C. §16(a).

Noncitizens facing removal generally receive a hearing 

before an immigration judge. Noncitizens can proffer defenses at that hearing, including that the conviction identified 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 reentry did not originally allow 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 “impose[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 minimum,” “a collateral challenge to the use of a deportation 
 

Cite as: 593 U. S. ____ (2021) 3 

Opinion of the Court 

proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of the [noncitizen] to obtain judicial review.” 

Id., at 839. 

Congress responded by enacting §1326(d). See Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

§441, 110 Stat. 1279. Entitled “Limitation on collateral attack on underlying deportation order,” §1326(d) establishes

three 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 opportunity 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 aggravated felony. Following a hearing, an immigration judge

ordered 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, 543 
 

4 UNITED STATES v. PALOMAR-SANTIAGO 

Opinion of the Court 

U. S. 1 (2004), that “a higher mens rea than the merely accidental or negligent conduct involved in a DUI offense” is 

necessary for an offense to qualify as a crime of violence. 

Id., at 11. Accordingly, Palomar-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 removal 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 (2020). 

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 convicted of an offense that made [them] removable.” United 

States v. Ochoa, 861 F. 3d 1010, 1015 (2017). Other Courts 

of Appeals do not excuse similarly situated unlawfulreentry defendants from meeting §1326(d)’s first two requirements.1 This Court granted certiorari to resolve this 

disagreement. 592 U. S. ___ (2021). 

—————— 1See, 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). 
Cite as: 593 U. S. ____ (2021) 5 

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) 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. 

Without the benefit of the Ninth Circuit’s extrastatutory

exception, §1326(d)’s first two 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 distinct from whether the noncitizen exhausted his administrative remedies (by appealing the immigration judge’s decision to the BIA) or was deprived of the opportunity for 

judicial review (by filing a petition for review of a BIA decision 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 contends that further administrative review of a removal order 

—————— 2Palomar-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 argument 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 expected 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 acknowledged that there are “circumstances 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 “unavailable.” Administrative review of removal orders exists precisely so noncitizens can challenge the substance of immigration 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 administrative 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 presented to this

Court. See Brownback v. King, 592 U. S. ___, ___, n. 4 (2021) (slip op., at 

5, n. 4). 3On 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 appealing the order to the BIA. See 8 U. S. C. §1252(d)(1). 
 

 

Cite as: 593 U. S. ____ (2021) 7 

Opinion of the Court 

removal order was procedurally flawed rather than substantively invalid. There can be no “challenge” to or “collateral attack” on the validity of substantively flawed orders, 

he reasons, because such orders are invalid from the moment they are entered. Palomar-Santiago’s position ignores the plain meaning of both “challenge” and “collateral 

attack.” Arguing that a prior removal order was substantively 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 challenge to an order takes place in a separate “proceeding that

has an independent purpose,” such as a later criminal prosecution, it is a “collateral attack.” Id., at 261. 

Palomar-Santiago last invokes the canon of constitutional avoidance.4 Courts should indeed construe statutes 

“to avoid not only the conclusion that [they are] unconstitutional, 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 ambiguity.” United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 494 (2001). Here, the text of §1326(d) 

unambiguously forecloses Palomar-Santiago’s interpretation. 

* * * 

The Court holds that each of the statutory requirements 

—————— 4Palomar-Santiago argues that “a scheme that permits the results of 

an administrative proceeding to conclusively establish a criminal offense” raises “due process and separation of powers problems,” which are 

“heightened when . . . the agency never 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 noncitizens 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 Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. 

It is so ordered.