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SCOTUS interprets federal statute governing collateral attack on removal orders

United States v. Palomar-Santiago, USSC No. 20-437, May 24, 2021, reversing  and remanding 813 Fed. Appx. 282 (9th Cir. 2020); Scotusblog page (including links to briefs and commentary)

Under 8 U.S.C. §1326(d), a person removed from the U.S. for a criminal conviction and then charged with illegally reentering the country may collaterally attack the removal order if he or she meets three criteria: (1) the person any exhausted administrative remedies available to challenged the order; (2) the person was deprived of the opportunity for judicial review of the order; and (3) the entry of the removal order was fundamentally unfair. Ninth Circuit precedent excused a person from meeting the first two criteria if the person was not convicted of an offense that was later determined not to make the person removable. A unanimous Court holds the Ninth Circuit precedent is contrary to the plain language of the statute, which always requires the person to meet all three criteria.

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