United States v. Palomar-Santiago, Refugio

Whether a defendant automatically satisfies all three of the prerequisites under 8 U.S.C. 1326(d) solely by showing that he was removed for a crime that would not be considered a removable offense under current circuit law, even if he cannot independently demonstrate administrative exhaustion or deprivation of the opportunity for judicial review.

Respondent is a Mexican national who previously had permanent resident status, but was removed due to a conviction of a DUI in 1998. In 2017, Respondent was indicted for unlawful reentry, but the charge was dismissed and the Ninth Circuit affirmed. Petitioner now argues that the case law used by the Ninth Circuit does not align itself with the statute. In United States v. Ochoa, the Ninth Circuit stated that “a defendant like respondent ‘is excused from proving [Section 1326(d)’s] first two requirements’ if he was not ‘convicted of an offense that made him removable.” 861 F.3d 1010, 1015 (9th Cir. 2017). However, Petitioner argues that the statute text itself requires that a defendant meet all the requirements that are listed, not just one. Additionally, Petitioner asserts that the Ninth Circuit’s interpretation of the statute has varied from the other courts of appeal, leading to inconsistent outcomes.