Amicus Curiae Brief — United States, Petitioner v. Refugio Palomar-Santiago

No. 20-437

IN THE

Supreme Court of the United States

UNITED STATES,

v.

Petitioner,

REFUGIO PALOMAR-SANTIAGO,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE NATIONAL

ASSOCIATION OF FEDERAL DEFENDERS

IN SUPPORT OF RESPONDENT

DANIEL L. KAPLAN

Assistant Federal Public

Defender

Co-Chair, National

Association of Federal

Defenders Amicus

Committee

850 West Adams Street

Suite 201

Phoenix, Arizona 85007

CUAUHTEMOC ORTEGA

Federal Public Defender

BRIANNA FULLER MIRCHEFF*

DAVID MENNINGER

Deputy Federal Public

Defenders

321 East Second Street

Los Angeles, California

90012

(213) 894-2854

Brianna_Mircheff@fd.org

*Counsel of Record

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ......................... 1

SUMMARY OF ARGUMENT.................................. 2

ARGUMENT ............................................................ 3

A. THE GOVERNMENT CANNOT BASE A

§ 1326 CHARGE ON A CONCEDEDLY

INVALID REMOVAL ORDER ........................... 3

1. Innocent-of-removal defendants are a

small subset of § 1326 defendants. .......... 4

2. This class of innocent-of-removal

defendants are afforded special

solicitude under the law. ......................... 6

3. The government’s rule multiplies the

injustice inflicted on innocent-ofremoval individuals. ................................ 8

4. Precluding prosecution based on an

invalid removal order will not absolve

a defendant from all consequences for

his reentry into the United States. ....... 13

5. A rule protecting innocent-of-removal

defendants in federal criminal court

does not threaten the administrative

process. .................................................. 15

6. This rule will not burden the federal

courts. .................................................... 16

ii

B. IN THE ALTERNATIVE, MR. PALOMARSANTIAGO’S CLAIM THAT HE WAS

REMOVED BUT NOT REMOVABLE

SATISFIES § 1326(D)(1) AND (2).................... 17

1. The exhaustion requirement of

§ 1326(d) should be deemed satisfied

because Mr. Palomar-Santiago was

“actually innocent” of removability. ...... 18

2. The exhaustion requirement is also

satisfied because the agency acted

beyond its authority. .............................. 23

CONCLUSION ....................................................... 27

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Allen v. Ives,

950 F.3d 1184 (9th Cir. 2020) .......................... 19

Batrez Gradiz v. Gonzales,

490 F.3d 1206 (10th Cir. 2007)....................21, 22

Bousley v. United States,

523 U.S. 614 (1998)........................................5, 21

Calderon v. Thompson,

523 U.S. 538 (1998)........................................... 19

Carachuri-Rosendo v. Holder,

560 U.S. 563 (2010)........................................... 12

City of Arlington, Tex. v. F.C.C.,

569 U.S. 290 (2013)........................................... 25

Coleman v. Thompson,

501 U.S. 722 (1991)........................................... 18

Coningford v. Rhode Island,

640 F.3d 478 (1st Cir. 2011) ............................. 22

Demore v. Kim,

538 U.S. 510 (2003)............................................. 8

iv

Dep’t of Homeland Sec. v. Regents of

the Univ. of California,

140 S. Ct. 1891 (2020)..................................24, 25

Descamps v. United States,

570 U.S. 254 (2013)............................................. 9

First Nat’l Bank of Grayson v.

Conover,

715 F.2d 234 (6th Cir. 1983) ............................ 25

Fontenot v. Allbaugh,

402 F. Supp. 3d 1110 (E.D. Okla.

2019) .................................................................. 23

Galvan v. Press,

347 U.S. 522 (1954)........................................... 24

Graham v. Johnson,

94 F.3d 958 (5th Cir. 1996) .............................. 23

In re Griffiths,

413 U.S. 717 (1973)............................................. 7

Harisiades v. Shaughnessy,

342 U.S. 580 (1952)........................................... 24

Haynes v. Quarterman,

526 F.3d 189 (5th Cir. 2008) ............................ 22

Herrera v. Collins,

506 U.S. 390 (1993)........................................... 18

I.N.S. v. Aguirre-Aguirre,

526 U.S. 415 (1999)........................................... 23

v

Jay v. Boyd,

351 U.S. 345 (1956)............................................. 5

Johnson v. Eisentrager,

339 U.S. 763 (1950)............................................. 7

Keeney v. Tamayo-Reyes,

504 U.S. 1 (1992)............................................... 18

La. Pub. Serv. Comm’n v. F.C.C.,

476 U.S. 355 (1986)........................................... 23

Landon v. Plasencia,

459 U.S. 21 (1982)............................................... 7

Lau v. United States,

144 U.S. 47 (1892)............................................... 6

Leedom v. Kyne,

358 U.S. 184 (1958)........................................... 25

Manges v. Camp,

474 F.2d 97 (5th Cir. 1973) .............................. 25

Mathis v. United States,

136 S. Ct. 2243 (2016)....................................... 12

McQuiggin v. Perkins,

569 U.S. 383 (2013)........................................... 18

Mellouli v. Lynch,

575 U.S. 798 (2015)........................................... 12

Milone v. Camp,

22 F.3d 693 (7th Cir. 1994) .............................. 22

vi

N.L.R.B. v. Cheney Cal. Lumber Co.,

327 U.S. 385 (1946)......................................25, 26

Najera-Rodriguez v. Barr,

926 F.3d 343 (7th Cir. 2019) ............................ 12

Reese Sales Co. v. Hardin,

458 F.2d 183 (9th Cir. 1972) ............................ 25

Ross v. Blake,

136 S. Ct. 1850 (2016)..................................22, 23

Sawyer v. Whitley,

505 U.S. 333 (1992)........................................... 19

Schlup v. Delo,

513 U.S. 298 (1995)................................18, 19, 21

Shawnee Coal Co. v. Andrus,

661 F.2d 1083 (6th Cir. 1981) .......................... 25

Spence v. Superintendent, Great

Meadow Corr. Facility,

219 F.3d 162 (2d Cir. 2000) .............................. 19

United States v. Aplicano-Oyuela,

792 F.3d 416 (4th Cir. 2015) ............................ 11

United States v. Barragan-Lopez,

No. 16-2368, (D. Ariz. May 30,

2017) .................................................................. 13

United States v. Beckford,

640 F. App'x 558 (7th Cir. 2016) .................11, 12

vii

United States v. Dominguez-Alvarado,

695 F.3d 324 (5th Cir. 2012) ............................ 11

United States v. Escajeda-Hernandez,

No. CR 14-2718 (S.D. Cal. Jan. 16,

2015) ...........................................................8, 9, 13

United States v. Garcia-Fraire,

No. 15-3048 (S.D. Cal. Mar. 3,

2016) .................................................................. 13

United States v. Hurtado-Saldivar,

No. 13-1166 (S.D. Cal. June 6,

2013) .................................................................. 13

United States v. Mikalajunas,

186 F.3d 490 (4th Cir. 1999) .......................19, 20

United States v. Ornelas-Miranda,

No. 19-1365 (D. Ariz. June 26,

2020) .................................................................. 13

United States v. Osario-Rivera,

No. 19-2028 (E.D. Wash. Jan. 18,

2019) .................................................................. 13

United States v. Payano,

930 F.3d 186 (3d Cir. 2019) .............................. 16

United States v. Sotelo-Araujo,

No. 14-163 (S.D. Cal. July 18,

2014) .................................................................. 13

United States v. Valle-Ramirez,

908 F.3d 981 (5th Cir. 2018) ............................ 16

viii

United States v. Williams,

790 F.3d 1059 (10th Cir. 2015)......................... 18

United States v. Zepeda-Ambriz,

No. 11-5411 (S.D. Cal. Jan. 26,

2012) .................................................................. 13

Winterberger v. General Teamsters

Auto Truck Drivers & Helpers

Local Union 162,

558 F.2d 923 (9th Cir. 1977) ............................ 25

Woodby v. INS,

385 U.S. 276 (1966)............................................. 7

Woodford v. Ngo,

548 U.S. 81 (2006)............................................. 15

Zhang v. Holder,

617 F.3d 650 (2d Cir. 2010) .............................. 14

Statutes

8 U.S.C. § 1182(a)(6)(A) ......................................4, 15

8 U.S.C. § 1226(c)(1)(B).......................................... 12

8 U.S.C. § 1227(a)................................................8, 24

8 U.S.C. § 1229a(c)(6)............................................. 14

8 U.S.C. § 1325 ....................................................... 13

8 U.S.C. § 1326 ................................................ passim

18 U.S.C. § 3006A .................................................... 1

ix

26 U.S.C. § 872(a)..................................................... 7

28 U.S.C. § 2254(b)(1)(A) ....................................... 22

28 U.S.C. § 2255(h)(1) ............................................ 18

50 U.S.C. § 3802(a)................................................... 7

California Penal Code § 459 .................................... 9

Regulations and Rules

8 C.F.R. § 1003.2 .................................................... 14

8 C.F.R. § 1003.23(b)(1) ......................................... 14

26 CFR § 1.1–1(b) ..................................................... 7

26 CFR § 1.871–1(a) ................................................. 7

Fed. R. Crim. P. 11(b)(1)(H) ................................... 16

Supreme Court Rule 37.6 ........................................ 1

Other Authorities

American Immigration Council, The

Ones They Leave Behind:

Deportation of Lawful Permanent

Residents Harms U.S. Citizen

Children (April 26, 2010).................................... 4

United States Courts, Criminal

Federal Judicial Caseload

Statistics 2020, Tbl. D2 (June 30,

2020 ..................................................................... 1

x

United States Sentencing

Commission, Illegal Reentry

Offenses (April 2015) .......................................... 5

INTEREST OF AMICUS CURIAE

The National Association of Federal Defenders

(NAFD), formed in 1995, is a nationwide, nonprofit,

volunteer organization made up of attorneys who

work for federal public and community defender

organizations authorized under the Criminal Justice

Act, 18 U.S.C. § 3006A. 1 Each year, federal

defenders represent tens of thousands of indigent

criminal defendants in federal court, among them

thousands of individuals charged under the statute

at issue here. Illegal reentry under 8 U.S.C. § 1326

is the most prosecuted federal crime. In the twelvemonth period ending in June 2020, federal

prosecutors brought 23,846 such cases: a staggering

36% of all federal prosecutions, which is higher than

all federal drug prosecutions combined. United

States Courts, Criminal Federal Judicial Caseload

Statistics 2020, Tbl. D2 (June 30, 2020),

https://www.uscourts.gov/statistics/table/d2/statistical-tables-federal-judiciary/2020/06/30.

The members of NAFD have deep practical

experience in litigating illegal-reentry cases

nationwide, and a strong incentive to ensure that

1 Pursuant to Rule 37.6, amicus curiae affirms that no

counsel for a party authored this brief in whole or in part and

that no person other than amicus or its counsel has made any

monetary contributions intended to fund the preparation or

submission of this brief. The parties have consented to the

filing of this brief.

2

individuals who were wrongly deported are not

subject to prosecution under § 1326.

SUMMARY OF ARGUMENT

If the immigration agencies had stayed within

their congressionally delegated bounds, Mr.

Palomar-Santiago would still be living in the United

States as a lawful permanent resident. He was,

instead, taken from his home, held in detention,

ordered removed from his country, separated from

his family, and stripped of his lawful employment

status—all due to what the government now

concedes was a legal mistake. Rather than take

steps to remedy the serious harm that it caused, or

at least demonstrate some measure of contrition, the

government would compound its error by using the

invalid order as the basis of criminal punishment.

Congress could not have intended the Executive

to prosecute for “reentry of removed aliens” a group

that Congress never authorized to be removed in the

first place. Instead, individuals like Mr. PalomarSantiago—people whose removal orders were issued

without lawful authority and thus are “innocent-ofremoval”—should be protected from prosecution

under § 1326, whether or not they can satisfy

§ 1326(d). NAFD writes separately to highlight the

narrowness, prudence, and workability of Mr.

Palomar-Santiago’s rule for removing such innocentof-removal defendants from § 1326(d). This rule will

apply in only a handful of cases: those individuals

for whom removal was substantively unlawful and

for whom no additional procedures or safeguards

could have made their removal proceedings just.

3

That

small

group—necessarily

limited

to

noncitizens granted lawful status—has always been

afforded special solicitude under our law, and they

represent the subset of § 1326 prosecutions that

most offend our notions of justice. Moreover, the rule

will not absolve a defendant of all liability related to

reentry, nor will it incentivize an innocent-ofremoval individual to forego administrative

remedies or multiply the workload of the federal

courts.

But even if Mr. Palomar-Santiago must satisfy

§ 1326(d), NAFD agrees that he can make that

showing. This Court has long recognized that

procedural requirements must bend to ensure that

innocence claims are heard on their merits, and

those doctrines apply with equal force in this setting.

Moreover, principles of administrative law support

Mr. Palomar-Santiago’s position, as this Court has

been willing to overlook technical adherence to

exhaustion requirements where the agency

exceeded its statutory authority.

Whether within § 1326(d) or without it, this

Court should hold that Congress did not intend the

government to prosecute defendants who are

innocent-of-removal. This Court should affirm.

ARGUMENT

A. The

Government Cannot Base a

§ 1326 Charge on a Concededly

Invalid Removal Order

NAFD agrees with Mr. Palomar-Santiago that,

under the best reading of 8 U.S.C. § 1326, the

4

government cannot prove the crime of “reentry of

removed aliens” by relying on an indisputably

invalid removal order. What might not be intuitive

is just how narrowly that rule could be crafted, and

how it would reach those cases that most offend

traditional concepts of justice.

1. Innocent-of-removal defendants are a

small subset of § 1326 defendants.

As an initial matter, it bears emphasis that this

innocent-of-removal class is quite narrow. In

practice, it would not include defendants who had no

lawful status at the time of their deportation,

because a person who lacks status is removable

based solely on lack of status. 8 U.S.C. §§

1182(a)(6)(A)(i); 1227(a)(1)(B). Only about 10% of all

removal orders are entered against lawful

permanent residents (LPRs), so this limitation alone

would likely make this rule inapplicable in the vast

majority of § 1326 prosecutions. 2

Because of the lawful-status limitation, the rule

would also exclude defendants who have received

multiple removal orders. A removal order strips an

individual of lawful status; therefore, by definition,

the defendant would not have status at any

subsequent removal and would be validly subject to

removal on that basis. This one-removal limitation

2 See American Immigration Council, The Ones They Leave

Behind: Deportation of Lawful Permanent Residents Harms

U.S.

Citizen

Children

(April

26,

2010),

https://www.americanimmigrationcouncil.org/sites/default/file

s/research/Childs_Best_Interest_Fact_Sheet_042610.pdf

5

would also exclude the lion’s share of defendants: in

fiscal year 2013, the last year that the Sentencing

Commission gathered this data, 63% of illegalreentry defendants had multiple removals. United

States Sentencing Commission, Illegal Reentry

Offenses (April 2015), at 9 & tbl. 9.

Third, a rule for innocence-of-removal would not

cover individuals whose claim is premised on

discretionary relief. A noncitizen has certain

procedural rights in connection with request for a

discretionary relief but has no right to discretionary

relief itself. Jay v. Boyd, 351 U.S. 345, 353-54 (1956).

Finally, even among the one-removal, formerlawful-status defendants, the rule would come into

play only in cases where the defendant was wrongly

ordered removed—that is, where the Immigration

Judge mistakenly ruled that the defendant fell

within the classes of individuals that Congress

deemed removable. In that sense, an innocence-ofremoval equivalent to Bousley v. United States, 523

U.S. 614 (1998), may well be warranted. See id. at

624 (explaining that the actual-innocence inquiry is

“not limited to the existing record” but includes “any

admissible evidence” bearing on the defendant’s

factual guilt).

For each of these reasons, the class of innocentof-removal defendants that would be outside of the

strictures of § 1326(d) under Respondent’s rule is

quite narrow.

6

2. This class of innocent-of-removal

defendants are afforded special

solicitude under the law.

As a practical matter, in narrowing the focus to §

1326 defendants who previously had lawful status,

Respondent homes in on a group that receives

special solicitude under the law—legal permanent

residents. Indeed, a century of jurisprudence and

statutory law emphasizes the rights and

responsibilities accorded to a lawful permanent

resident—rights and responsibilities that a

wrongful deportation extinguishes without any

legitimate basis. Congress, legislating against this

backdrop, could not have intended for a wrongfully

deported LPR to face aggravated punishment based

on an unlawful order.

As early as the nineteenth century, this Court

observed the special place that a longtime, lawful

resident noncitizen holds in American law:

[F]oreigners

who

have

become

domiciled in a country other than their

own acquire rights and must discharge

duties in many respects the same as

possessed by and imposed upon the

citizens of that country; and no

restriction on the footing upon which

such person stand by reason of their

domicile of choice ... is to be presumed.

Lau v. United States, 144 U.S. 47, 61-62 (1892).

Having been granted permission to lawfully remain

in the United States, a lawful permanent resident

develops deep attachments to this country, often

7

deeper than to his country of birth. Woodby v. INS,

385 U.S. 276, 286 (1966) (“[M]any resident aliens

have lived in this country longer and established

stronger family, social, and economic ties here than

some who have become naturalized citizens.”). Our

nation asks much of LPRs: “Resident aliens, like

citizens, pay taxes, support the economy, serve in

the Armed Forces, and contribute in myriad other

ways to our society.” In re Griffiths, 413 U.S. 717,

722 (1973). A lawful permanent resident male of

war-going age—like his U.S. citizen peers, but

unlike any other noncitizen—must register for the

Selective Service. 50 U.S.C. § 3802(a). A lawful

permanent resident, like a citizen, is required to pay

taxes to the U.S. government on income earned

anywhere in the world, whereas a temporary

resident owes taxes only on U.S.-based earnings.

Compare 26 CFR § 1.1–1(b) with id. § 1.871–1(a); 26

U.S.C. § 872(a).

In exchange for these greater obligations, the

lawful permanent resident is afforded greater

constitutional protections than other noncitizens.

Johnson v. Eisentrager, 339 U.S. 763, 770 (1950)

(“The alien, to whom the United States has been

traditionally hospitable, has been accorded a

generous and ascending scale of rights as he

increases his identity with our society.”); Landon v.

Plasencia, 459 U.S. 21, 32 (1982) (“[O]nce an alien

gains admission to our country and begins to develop

the ties that go with permanent residence his

constitutional status changes accordingly.”). Of

course, Congress has decided that a lawful

permanent resident can nonetheless be stripped of

8

these rights if he runs afoul of certain statutory

prohibitions. See 8 U.S.C. § 1227(a). But as long as

he does not commit an act that subjects him to

removal, a lawful permanent resident is entitled to

live much like a U.S. citizen. 3

Legislating against this backdrop, it is unlikely

that Congress intended to allow the Executive to

multiply its own error by authorizing prosecution

based on a wrongfully entered order. This is all the

more reason to adopt the Respondent’s construction

of a class of innocent-of-removal individuals whose

fate does not turn on whether their claim is

procedurally perfected.

3. The government’s rule multiplies the

injustice inflicted on innocent-ofremoval individuals

Moreover, real human costs lie in the balance

between the government’s rule and Mr. PalomarSantiago’s. Take, for example, a person protected

from prosecution under the Ninth Circuit’s rule and

under Respondent’s rule:

Jorge Escajeda-Hernandez: Mr. EscajedaHernandez became a lawful permanent resident as

a child. United States v. Escajeda-Hernandez, No.

CR 14-2718, ECF 25-1 at 2, (S.D. Cal. Jan. 16, 2015).

He speaks unaccented English. Id. at 3. After

graduating from a Los Angeles high school, he

3 The only important exceptions are entitlement for certain

public benefits and political rights, such as voting, jury service,

and public office. Demore v. Kim, 538 U.S. 510, 544 (2003)

(Souter, J., concurring and dissenting).

9

married a United States citizen and fathered three

U.S. citizen daughters. Id. at 2-3. In 2001, he was

convicted of a violation of California Penal Code 459.

Id. at 4. Although California calls that offense

“burglary,” at the time of Mr. Escajeda-Hernandez’s

conviction it “swep[t] so widely” that it encompassed

even “a shoplifter who enters a store, like any other

customer, during business hours.” Descamps v.

United States, 570 U.S. 254, 259 (2013). For that

reason, this Court would hold that it does not qualify

as an aggravated felony. Id.

In 2004, however, the Department of Homeland

Security (DHS) took Mr. Escajeda-Hernandez into

immigration detention and commenced removal

proceedings on the erroneous basis that his offense

qualified as an aggravated felony. EscajedaHernandez, ECF 25-1 at 4. Joining in DHS’s error,

the Immigration Judge stripped Mr. EscajedaHernandez of his lawful permanent resident status

and ordered him removed. Id. The agency’s legal

error not only wrongfully removed Mr. EscajedaHernandez from his lifelong home; it also wrongfully

separated a U.S. citizen spouse from her husband,

and three U.S. citizen children from their father.

When Mr. Escajeda-Hernandez returned to the

United States, the government charged him with

illegal reentry in violation of § 1326. EscajedaHernandez, ECF 1. No doubt because of Ninth

Circuit precedent providing a pathway for

challenges like his, the government agreed to let Mr.

Escajeda-Hernandez plead to a misdemeanor charge

of illegal entry instead. Id. ECF 32. He received a

sentence of five months’ imprisonment. Id. ECF 31.

10

*****

In contrast, jurisdictions that do allow

prosecution of innocent-of-removal defendants—and

would continue to do so under the rule advocated by

the government—compound the human costs by

imprisoning individuals based on a patently invalid

deportation order:

Jose Alfredo Flores: Jose Alfredo Flores came to

the United States at age 8. United States v. Flores,

CR 18-150, ECF 69 at 3 (D. Colo. Oct. 12, 2018). He

graduated from a high school in western Colorado,

and completed college coursework. Id. His father is

also a lawful permanent resident, and the rest of his

family are U.S. citizens. Id. at 4. In 2009, he was

convicted of the Colorado crime of vehicular eluding.

Id. ECF 34 at 2. Erroneously concluding that Mr.

Flores’s conviction was an aggravated felony, an

Immigration Judge ordered him removed and

separated from his family, deporting him to a

country he barely knew. Id. at 2-3. Even though the

government later admitted that Mr. Flores’s offense

was not, in fact, an aggravated felony—that he

should have never been deported in the first place—

it nonetheless charged him with illegal reentry after

deportation. See id. ECF 38 at 1. The wrongfulness

of his removal provided no defense in the Tenth

Circuit, and Mr. Flores was convicted and sentenced

to 22 months’ imprisonment for violating a

11

deportation order that the Immigration Judge had

no authority to issue. Id. ECF 73. 4

Ramon Varela-Cias: Mr. Varela-Cias was a

lawful permanent resident with a long record of

work in the agricultural sector. United States v.

Varela-Cias, CR 10-420, ECF 22 at 2 (D.N.M. Apr.

13, 2010). He lived in Idaho with his wife and three

children, who were also all lawful permanent

residents. Id. ECF 22-1 at 9-11. In 2000, he was

convicted of felony DUI under Idaho law. Id. ECF 22

at 2. In 2001, an Immigration Judge made the same

erroneous conclusion as the Immigration Judge in

Mr. Palomar-Santiago’s case: that felony DUI

qualifies as an aggravated felony crime of violence.

Id. at 3. Six years after this Court held in Leocal that

a DUI was never a crime of violence, the government

nonetheless charged Mr. Varela-Cias under 8 U.S.C.

§ 1326. Id. ECF 1. He was convicted and sentenced

to ten months’ imprisonment. Id. ECF 47.

Oscar Beckford: Mr. Beckford came from

Guatemala to the United States in 1970s with his

family. United States v. Beckford, 640 F. App’x 558,

559 (7th Cir. 2016). He became a lawful permanent

The record in Mr. Flores’s case—like the two following

examples—does not specifically indicate what happened to him

after his prison sentence, but there is no reason to believe that

he was not deported upon release. See, e.g., United States v.

Dominguez-Alvarado, 695 F.3d 324, 329 (5th Cir. 2012)

(accepting as fact that defendant would be deported); United

States v. Aplicano-Oyuela, 792 F.3d 416, 424 (4th Cir. 2015)

(same). And as explained below, even wrongly deported

defendants who escape § 1326 conviction, like Mr. EscajedaHernandez, are nonetheless usually deported.

4

12

resident in 1990. Id. In the 1990s, he sustained three

Illinois convictions for simple drug possession. Id. at

560. In 1997, an Immigration Judge ordered him

removed, erroneously concluding that his second

and third possession convictions qualified as

aggravated felonies. Id. at 560. This Court

subsequently held that a simple possession offense

is never an aggravated felony. Carachuri-Rosendo v.

Holder, 560 U.S. 563, 582 (2010). 5 Even though

Carachuri-Rosendo made clear that Congress never

wanted Mr. Beckford deported in the first place, the

government charged him with illegal reentry in

2014. Beckford, 640 F. App’x at 560. He was

convicted

and

sentenced

to

60

months’

imprisonment. Id.

*****

In each case, the government took these men

from their families, locked them in immigration

detention, 6 and ordered them deported from their

homes. In each case, there is no dispute that the

individuals were not validly removed. In each case,

the government nonetheless attempted to—or

successfully did—use a patently invalid removal

5 Mr. Beckford’s Illinois possession convictions also do not

qualify as deportable controlled substance offenses. NajeraRodriguez v. Barr, 926 F.3d 343, 348 (7th Cir. 2019) (applying

Mathis v. United States, 136 S. Ct. 2243 (2016) and Mellouli v.

Lynch, 575 U.S. 798 (2015)). Thus, he was not deportable under

any alternative ground of removability.

The law states that DHS “shall” detain a noncitizen

convicted of an aggravated felony during removal proceedings.

8 U.S.C. § 1226(c)(1)(B).

6

13

order as the basis of criminal punishment. The

statute should not be read to sanction this piling of

error on error.

4. Precluding prosecution based on an

invalid removal order will not absolve

a defendant from all consequences for

his reentry into the United States.

Although a ruling for Mr. Palomar-Santiago

would prevent § 1326 prosecution of this narrow

class, it would not mean that these individuals could

unlawfully return to the United States without

consequence. As an initial matter, even if the invalid

order will not support illegal-reentry charges under

§ 1326, such a defendant still may be charged with

unlawful entry under 8 U.S.C. § 1325, which carries

a penalty of up to six months for a first offense and

up to two years for each successive offense. Id. As

Mr. Escajeda-Hernandez’s case demonstrates, those

who might state a valid § 1326(d) claim under the

Ninth Circuit’s current rule often resolve the case

with a plea to this lesser charge. EscajedaHernandez, ECF 32; see also, e.g., United States v.

Zepeda-Ambriz, No. 11-5411, ECF 21 (S.D. Cal. Jan.

26, 2012); United States v. Hurtado-Saldivar, No.

13-1166, ECF 22 (S.D. Cal. June 6, 2013); United

States v. Sotelo-Araujo, No. 14-163, ECF 27 (S.D.

Cal. July 18, 2014); United States v. Garcia-Fraire,

No. 15-3048, ECF 28 (S.D. Cal. Mar. 3, 2016); United

States v. Barragan-Lopez, No. 16-2368, ECF 27 (D.

Ariz. May 30, 2017); United States v. Osario-Rivera,

No. 19-2028, ECF 36 (E.D. Wash. Jan. 18, 2019);

United States v. Ornelas-Miranda, No. 19-1365,

ECF 27 (D. Ariz. June 26, 2020). In this sense,

14

dismissal of § 1326 charges on the ground of

innocence-of-removal is no get-out-of-jail free card; it

only concerns whether the defendant is guilty of the

aggravated offense of returning in violation of a duly

entered removal order.

Moreover, a rule requiring a valid removal order

would not automatically restore the immigration

status of individuals who are innocent-of-removal.

Congress has prescribed a separate set of rules for

reopening an immigration proceeding, and there are

stringent procedural limitations on the ability to

seek such relief. The statute allows a noncitizen only

one motion to reconsider, to be filed within 30 days

of the removal order, and one motion to reopen, filed

within 90 days of the removal order, with minimal

exceptions. 8 U.S.C. §§ 1229a(c)(6)(A), (B);

1229a(c)(7)(A), (C)(i). 7 An innocent-of-removal

noncitizen’s options for undoing the unlawful

removal are thus strictly limited.

Considering these restrictions, an innocent-ofremoval defendant might be deported again, even if

he prevails and his illegal-reentry charges are

dismissed. Moreover, as explained above, a

wrongfully deported defendant’s unlawful reentry

A noncitizen who seeks reopening or reconsideration

outside these statutory limits is at the mercy of the agency’s

discretion. 8 C.F.R. §§ 1003.23(b)(1), 1003.2(a). And although

it has been the subject of litigation, a regulation purports to bar

such “sua sponte” motions after the noncitizen has departed—

or been deported from—the United States. 8 C.F.R. § 1003.2(d);

see, e.g., Zhang v. Holder, 617 F.3d 650, 665 (2d Cir. 2010)

(upholding the regulatory “departure bar” in this context).

7

15

could form the basis of a new removal charge. See 8

U.S.C. § 1182(a)(6)(A) (making removable any

noncitizen who enters the United States without

inspection). Thus, even when a court dismisses a

§ 1326 charge because the prior removal order was

infirm, that dismissal does not immunize the

defendant from deportation.

5. A rule protecting innocent-of-removal

defendants in federal criminal court

does not threaten the administrative

process.

In light of the dire consequences that flow from a

removal order for a lawful resident, this Court need

not worry that Mr. Palomar-Santiago’s rule would

cause noncitizens to disregard Immigration Court

orders and forego appeals. Cf. Woodford v. Ngo, 548

U.S. 81, 90 (2006) (“[E]xhaustion requirements are

designed to deal with parties who do not want to

exhaust.”). The small group of defendants that this

argument protects has every motivation to fight for

their legal status from the beginning. No one would

choose a loss of legal status and separation from

family and country on the hope that he might have

a defense to criminal charges down the road. As just

described, the failure to challenge the lawfulness of

deportation at the time of the removal hearing will

have its own consequences that cannot be

ameliorated solely by prevailing on a defense in

federal criminal court. In short, no one would

reserve a valid argument against removability in the

hopes that they might be able to use it, later, in a

federal criminal proceeding, when the other option

16

is fighting to remain in the country with their

family.

6. This rule will not burden the federal

courts.

One last practical point: As the above examples

demonstrate, most innocent-of-removal cases come

down to whether a particular offense is an

aggravated felony. But deciding whether a

defendant’s prior offense is an aggravated felony is

required in all § 1326 cases, regardless of whether

the outcome of that inquiry provides a defense,

because it drives the statutory range for the offense.

Section 1326(b) creates a ten-year statutory

maximum if the defendant returns after conviction

of a felony, and a twenty-year statutory maximum if

the defendant returns after conviction of an

aggravated felony. 8 U.S.C. § 1326(b)(2). Because a

defendant must be properly advised of the statutory

maximum in connection with a guilty plea, Fed. R.

Crim. P. 11(b)(1)(H), the district court must address

questions around the definition of aggravated felony

in every § 1326 case, whether it presents a defense

to the charges or not. See, e.g., United States v. ValleRamirez, 908 F.3d 981, 983 (5th Cir. 2018) (“We

affirm that the relevant Georgia statute qualifies as

an aggravated felony and affirm the district court’s

judgment reflecting Valle-Ramirez’s conviction

under § 1326(b)(2).”); United States v. Payano, 930

F.3d 186, 192 n.4 & 198 (3d Cir. 2019) (holding that

defendant’s prior offense was not an aggravated

felony and remanding for resentencing in light of

“District Court’s erroneous understanding of the

applicable statutory maximum”). Any suggestion

17

that Mr. Palomar-Santiago’s proposed rule would

multiply categorical-approach analyses required of

the district courts would be incorrect.

For all of these practical reasons, we believe that

Mr. Palomar-Santiago’s rule is not only right as a

matter of constitutional avoidance and textual

interpretation, it is also manageable, practical, and

avoids the multiplication of injustice in the most

compelling cases.

B. In the Alternative, Mr. PalomarSantiago’s

Claim

that

he

was

Removed but not Removable Satisfies

§ 1326(d)(1) and (2).

There is good reason, then, to believe that

Congress must have intended innocent-of-removal

individuals to be outside the requirements of

§ 1326(d) altogether. But even if Mr. PalomarSantiago is subject to § 1326(d)(1) and (2), the Court

should still affirm. Mr. Palomar-Santiago argues

that an Immigration Judge’s legal error in finding a

noncitizen removable necessarily taints their waiver

of the right to pursue administrative remedies.

Other amici describe, as a practical matter, just how

difficult it is for noncitizens to pursue

administrative

remedies,

particularly

from

detention. NAFD agrees wholeheartedly with both

points. We write separately to amplify Respondent’s

alternative point that Mr. Palomar-Santiago’s plight

should be recognized for what it is: removability

innocence. And in this context—just as the Court

has routinely recognized in analogous contexts—

procedural hurdles should bend to proof that a

18

noncitizen has been invalidly stripped of his lawful

status.

1. The

exhaustion

requirement

of

§ 1326(d) should be deemed satisfied

because Mr. Palomar-Santiago was

“actually innocent” of removability.

This Court has long recognized a miscarriage-ofjustice exception to procedural rules that would bar

consideration of a claim of innocence on the merits.

Where a habeas petitioner proves that he is actually

innocent of a criminal offense, for example, he is not

held to his procedural default of the claim at an

earlier stage of proceedings. Schlup v. Delo, 513 U.S.

298, 326-27 (1995). He is not barred from relief even

if he fails to file his claim within the statute of

limitations. McQuiggin v. Perkins, 569 U.S. 383, 387

(2013). New evidence of factual innocence provides a

path to filing a second or successive habeas petition.

28 U.S.C. § 2255(h)(1); see United States v. Williams,

790 F.3d 1059, 1079-80 (10th Cir. 2015) (granting

authorization to proceed on a second-or-successive

petition based on a showing of “factual innocence”).

In pre-AEDPA days, a person who established actual

innocence could overcome the abuse-of-the-writ

doctrine. Herrera v. Collins, 506 U.S. 390, 404

(1993). And neither the failure to develop facts in the

state court, nor the failure to comply with state filing

deadlines precludes federal courts from considering

claims of innocence. Keeney v. Tamayo-Reyes, 504

U.S. 1, 11-12 (1992); Coleman v. Thompson, 501 U.S.

722, 750 (1991).

19

This Court has been willing to overlook all such

procedural missteps because “concern about the

injustice that results from the conviction of an

innocent person has long been at the core of our

criminal justice system.” Schlup, 513 U.S. at 325.

Thus, even granting “AEDPA’s central concern that

the merits of concluded criminal proceedings not be

revisited,” that concern, too, must yield in the face of

a “strong showing of actual innocence.” Calderon v.

Thompson, 523 U.S. 538, 558 (1998) (permitting

federal court to recall its mandate to revisit merits

of decision, in light of innocence showing). Where a

compelling case of actual innocence is presented,

interests in comity and finality must bend to permit

that claim to be heard.

Moreover, this Court and the lower courts have

extended the miscarriage-of-justice exception

beyond those who claim that they are innocent of the

offense of conviction. In Sawyer v. Whitley, 505 U.S.

333, 341 (1992), the Court held that one can be

innocent of the death penalty. Though “innocent of

death” might not be a “natural usage,” the Court

deemed it appropriate to “strive to construct an

analog” that was narrow but permitted these

compelling cases to be considered on their merits. Id.

Since then, several circuits have accepted that one

can be innocent of a non-capital sentencing

enhancement in at least some circumstances. See

Allen v. Ives, 950 F.3d 1184, 1189-90 (9th Cir. 2020);

Spence v. Superintendent, Great Meadow Corr.

Facility, 219 F.3d 162, 171 (2d Cir. 2000); United

States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir.

1999).

20

A § 1326(d) defendant who claims an invalid

deportation in the context of a criminal case is

differently positioned from a habeas petitioner, but

the two contexts share several important features

that make the analogy apt. Both challenge the

validity of a final adjudication that continues to have

an ongoing prejudicial impact. As this Court

recognized long ago, removability, especially for

permanent residents like Mr. Palomar-Santiago,

has consequences akin to those in a criminal

proceeding. In Bridges v. Wixon, the Court

considered whether a longtime resident of the

United States would be banished to Australia

because of his affiliation with the Communist party.

326 U.S. 135, 154 (1945). The Court recognized:

Though deportation is not technically a

criminal proceeding, it visits a great

hardship on the individual and

deprives him of the right to stay and

live and work in this land of freedom.

That deportation is a penalty—at times

a most serious one—cannot be doubted.

Meticulous care must be exercised lest

the procedure by which he is deprived

of that liberty not meet the essential

standards of fairness.

Id. Mr. Palomar-Santiago was, indisputably,

innocent-of-removal—he was removed yet not

removable. This Court should show that claim the

same solicitude it would a habeas petitioner’s

innocence claim and adapt the miscarriage-of-justice

exception to this analogous context.

21

From a practical standpoint, moreover, the

analogy holds. Both the actually innocent habeas

petitioner and the person who is actually innocentof-removal have plenty of incentive to raise their

claims properly and in a timely fashion. Moreover,

true cases of innocence-of-removal will be just as

rare as proved cases of criminal innocence, for all the

reasons set out above. Schlup, 513 U.S. at 321. In

particular, as was contemplated in Bousley, the

government might meet an actual innocence claim

by showing that there was additional proof of

removability—even proof outside the record—that

existed at the time and that the government would

have presented, had they had a proper

understanding of the law. Bousley, 523 U.S. at 624.

Mr. Palomar-Santiago’s removal was wrongful,

and its wrongfulness has nothing to do with the

process he received. And just like the habeas

petitioner who proves his innocence, this Court

should ensure that those who are actually innocentof-removal have an avenue to prevent the

multiplication of that injustice through a criminal

charge.

Indeed, at least one court has already extended

the miscarriage-of-justice exception to the

immigration context. Drawing the analogy to factual

innocence in a criminal case, the Tenth Circuit

overlooked a noncitizen’s failure to exhaust

remedies in immigration court because his claim

went to the very basis of his deportation. Batrez

Gradiz v. Gonzales, 490 F.3d 1206, 1209-10 (10th

Cir. 2007). The miscarriage-of-justice exception had

a role to play, the Court held, where the noncitizen

22

alleges an error that would make him “actually

innocent” of deportation. Id.

The government argues that Ross v. Blake, 136

S. Ct. 1850 (2016), presents an insuperable barrier

to this argument. It does not. Ross v. Blake held, in

the context of the Prison Litigation Reform Act

(PLRA), that courts could not engraft a specialcircumstances exception onto a statutory exhaustion

requirement. Id. at 1858. The Court reached that

conclusion in light of the history and legislative

intent of the PLRA. Id. at 1857-58. Here, for the

reasons set forth in Mr. Palomar-Santiago’s brief,

the text and history here point in the other direction.

Br. of Resp. at 45 n.6.

More fundamentally, however, Ross v. Blake

concerned a suit for damages sustained in a prison

assault. There was no reason to discuss the

trumping effect of innocence in the context of PLRA

exhaustion, because there is no equivalent of

innocence in a suit for monetary damages. But in the

context where a statutory exhaustion requirement

does collide with innocence, courts have continued to

give an overriding effect to innocence. For example,

a state habeas petitioner is statutorily required to

exhaust all remedies available in the state court. 28

U.S.C. § 2254(b)(1)(A). And yet, as with other

procedural rules, the exhaustion rule would not bar

one who claims actual innocence,; Milone v. Camp,

22 F.3d 693, 699 (7th Cir. 1994); Haynes v.

Quarterman, 526 F.3d 189, 195 (5th Cir. 2008);

Coningford v. Rhode Island, 640 F.3d 478, 482 n.2

(1st Cir. 2011), at least so long as there was not a

remaining door through which petitioner’s claim of

23

innocence could be exhausted in the state court.

Graham v. Johnson, 94 F.3d 958, 969 (5th Cir. 1996).

Even after Ross v. Blake, courts have continued to

apply these cases to exempt the rare person who

establishes his innocence from having to return to

state court to exhaust his claims. E.g., Fontenot v.

Allbaugh, 402 F. Supp. 3d 1110, 1152 (E.D. Okla.

2019).

The government’s rule subjects innocent-ofremoval defendants to prosecution for failure to

exhaust. Consonant with its precedents, this Court

should extend the miscarriage-of-justice exception to

such individuals.

2. The exhaustion requirement is also

satisfied because the agency acted

beyond its authority.

A broad view of the miscarriage-of-justice

exception is warranted under principles of

administrative law as well. The class of innocent-ofremoval LPRs discussed above, by definition, are

beyond the authority of the immigration agencies to

remove from the country. Under longstanding tenets

of administrative law—and the separation-ofpowers concerns that underlie them—exhaustion is

not required where an agency has patently

overstepped its authority.

An agency “literally has no power to act . . . unless

and until Congress confers power upon it.” La. Pub.

Serv. Comm’n v. F.C.C., 476 U.S. 355, 374 (1986)

Pursuant to such a grant of authority, DHS and the

immigration courts administer our nation’s

immigration laws. See I.N.S. v. Aguirre-Aguirre, 526

24

U.S. 415, 424-25 (1999). But it is Congress, and not

the agencies, that decides what makes a noncitizen

subject to removal. Harisiades v. Shaughnessy, 342

U.S. 580, 597 (1952) (Frankfurter, J., concurring)

(the question of “what classes of aliens shall be

allowed to enter and what classes of aliens shall be

allowed to stay” is “for Congress exclusively to

determine”); Galvan v. Press, 347 U.S. 522, 531

(1954) (the principle that rules governing which acts

might subject a noncitizen to removal are “entrusted

exclusively to Congress” is “as firmly imbedded in

the legislative and judicial tissues of our body politic

as any aspect of our government”). And Congress has

strictly limited immigration agencies’ authority to

remove noncitizens. See 8 U.S.C. § 1227(a) (allowing

the agency to enter a removal order against a

noncitizen admitted to the United States only if he

falls “within one or more of the following classes of

deportable aliens”); id. § 1229a(c)(3)(A) (providing

that “no decision on deportability shall be valid”

unless the agency meets a clear-and-convincing

burden of “reasonable, substantial, and probative

evidence”). Where a noncitizen is deported for a

reason not specified by Congress, that order is

“invalid.” Bridges, 326 U.S. at 149; see Dep’t of

Homeland Sec. v. Regents of the Univ. of California,

140 S. Ct. 1891, 1922 (2020) (Thomas, J., concurring

and dissenting) (arguing that DHS action was

“unlawful” because it “created a new exception to the

statutory provisions governing removability”).

Because agencies’ “power to act and how they are

to act is authoritatively prescribed by Congress, . . .

when they act improperly, no less than when they

25

act beyond their jurisdiction, what they do is ultra

vires.” City of Arlington, Tex. v. F.C.C., 569 U.S. 290,

297 (2013). And when an agency “has patently

traveled outside the orbit of its authority” in issuing

an order, “legally speaking there is no order to

enforce.” N.L.R.B. v. Cheney Cal. Lumber Co., 327

U.S. 385, 388 (1946); cf. Regents of the Univ. of

California, 140 S. Ct. at 1926, 1922, 1927 (2020)

(Thomas, J., dissenting) (stating that DHS action

that exceeded “congressionally delegated power”

was “void ab initio”).

In light of these principles, courts have long

recognized that the failure to exhaust an agency’s

administrative process presents no barrier to relief

where the administrative proceedings themselves

are void, Winterberger v. General Teamsters Auto

Truck Drivers & Helpers Local Union 162, 558 F.2d

923, 925 (9th Cir. 1977) (exhaustion not required

where agency action conceded to be void); Shawnee

Coal Co. v. Andrus, 661 F.2d 1083, 1093 (6th Cir.

1981), or where the agency patently strayed beyond

its authority to act. Leedom v. Kyne, 358 U.S. 184,

189 (1958); see also Reese Sales Co. v. Hardin, 458

F.2d 183, 187 (9th Cir. 1972); First Nat’l Bank of

Grayson v. Conover, 715 F.2d 234, 236 (6th Cir.

1983); Manges v. Camp, 474 F.2d 97, 99 (5th Cir.

1973).

This rule makes eminent sense. Where the

agency’s action is void beyond dispute, or where the

agency has patently strayed beyond its authority,

the traditional benefits of exhaustion vanish.

Winterberger, 558 F.2d at 925-26. There is no utility

in consulting the agency’s expertise, or receiving the

26

agency’s distillation of the issues, where there is no

dispute that the agency acted in excess of its

authority. And where “legally speaking there is no

order to enforce,” Cheney Cal. Lumber Co., 327 U.S.

at 388, any further remedies dependent on that outof-bounds agency cannot meaningfully be deemed

“available.” See 8 U.S.C. § 1326(d)(1).

Here, there is no dispute that the agency had no

authority to remove Mr. Palomar-Santiago based on

his DUI conviction, and there is not suggestion that

he was removable on any other ground. He was

removed, but not removable. For this narrow group

of innocent-of-removal individuals, any failure to

exhaust should not preclude relief.

27

CONCLUSION

For the foregoing reasons, the judgment of the

Court of Appeals should be affirmed.

Respectfully submitted,

CUAUHTEMOC ORTEGA

Federal Public Defender

BRIANNA FULLER MIRCHEFF*

DAVID MENNINGER

Deputy Federal Public

Defenders

321 East 2nd Street

Los Angeles, California 90012

Telephone: (213) 894-2854

Brianna_Mircheff@fd.org

*Counsel of Record

DANIEL L. KAPLAN

Assistant Federal

Public Defender/Co-Chair,

National Association

of Federal Defenders

Amicus Committee

850 West Adams Street

Suite 201

Phoenix, Arizona 85007

March 29, 2021