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United States v. Refugio Palomar-Santiago

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 19-10011 · judgment May 14, 2020

Decided · May 24, 2021
Pre-decision estimate: 41% cert probability (95% interval 31%–51%)

Before the decision, about 9.8× the 4.1% base rate. The model weighted this up for a federal-government petitioner, a Ninth Circuit decision below, and a circuit split argued in the petition.

Question presented

Under 8 U.S.C. 1326(d), a defendant charged with unlawful reentry into the United States following removal may assert the invalidity of the original removal order as an affirmative defense only if he “demonstrates that” he “exhausted any administrative remedies that may have been available to seek relief against the order,” 8 U.S.C. 1326 (d)(1), the removal proceedings “deprived [him] of the opportunity for judicial review,” 8 U.S.C. 1326(d)(2), and “the entry of the order was fundamentally unfair,” 8 U.S.C. 1326 (d)(3). The question presented is whether a defendant automatically satisfies all three of those prerequisites 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. ORDER OF FEBRUARY 22, 2021: BRADLEY N. GARCIA, ESQ., OF WASHINGTON, D.C., IS APPOINTED TO SERVE AS COUNSEL FOR RESPONDENT IN THIS CASE.

Counsel of record

For petitioner
Brian H. Fletcher
Acting Solicitor General

For respondent
Bradley N. Garcia
O'Melveny & Myers, LLP

Case

Conference history
Distributed for 2 conferences

Amicus briefs
6 merits
(1 supporting pet./neither, 5 respondent)

Argument & decision

Argued April 27, 2021 — Erica L. Ross · Bradley N. Garcia. Audio and transcript

Decided May 24, 2021. Opinion by Sotomayor.

Proceedings

  1. Jun 25 2021
    JUDGMENT ISSUED.
  2. May 24 2021
    Motion for leave to file a supplemental brief after oral argument GRANTED.
  3. May 24 2021
    Conditional cross-motion for leave to file a supplemental brief after oral argument GRANTED.
  4. May 24 2021
    Judgment REVERSED and case REMANDED. Sotomayor, J., delivered the opinion for a unanimous Court.
  5. May 04 2021
    Conditional cross-motion for leave to file a supplemental brief after oral argument filed by petitioner United States. (Distributed)
  6. Apr 29 2021
    Motion for leave to file a supplemental brief after oral argument filed by respondent Refugio Palomar-Santiago. (Distributed)
  7. Apr 27 2021
    Argued. For petitioner: Erica L. Ross, Assistant to the Solicitor General, Department of Justice, Washington, D. C. For respondent: Bradley N. Garcia, Washington, D. C. (Appointed by this Court.)
  8. Apr 16 2021
    Reply of petitioner United States filed. (Distributed)
  9. Mar 31 2021
    Brief amicus curiae of The National Association of Criminal Defense Lawyers filed. (Distributed)
  10. Mar 31 2021
    Brief amici curiae of The National Immigration Project, et al. filed. (Distributed)
  11. Mar 31 2021
    Brief amici curiae of Former Executive Office of Immigration Review Judges filed. (Distributed)
  12. Mar 31 2021
    Brief amici curiae of Professors Kelly Lytle Hernández, Mae Ngai, and Ingrid Eagly filed. (Distributed)
  13. Mar 30 2021
    CIRCULATED
  14. Mar 29 2021
    Brief amicus curiae of National Association of Federal Defenders filed. (Distributed)
  15. Mar 24 2021
    Brief of respondent Refugio Palomar-Santiago filed.
  16. Mar 15 2021
    Record requested.
  17. Mar 15 2021
    The record from the U.S.C.A. 9th Circuit is electronic and located on Pacer.
  18. Mar 12 2021
    SET FOR ARGUMENT on Tuesday, April 27, 2021.
  19. Mar 01 2021
    Brief amicus curiae of Immigration Reform Law Institute filed.
  20. Feb 22 2021
    Motion to appoint counsel filed by respondent GRANTED, and Bradley N. Garcia, Esq., of Washington, D.C., is appointed to serve as counsel for respondent in this case.
  21. Feb 22 2021
    Motion to dispense with printing the joint appendix filed by petitioner GRANTED.
  22. Feb 22 2021
    Brief of petitioner United States filed.
  23. Feb 03 2021
    DISTRIBUTED for Conference of 2/19/2021.
  24. Jan 26 2021
    Motion to appoint counsel filed by respondent Refugio Palomar-Santiago.
  25. Jan 22 2021
    Motion to dispense with printing the joint appendix filed by petitioner United States.
  26. Jan 08 2021
    Motion for leave to proceed in forma pauperis filed by respondent GRANTED.
  27. Jan 08 2021
    Petition GRANTED.
  28. Dec 23 2020
    DISTRIBUTED for Conference of 1/8/2021.
  29. Dec 23 2020
    Reply of petitioner United States filed. (Distributed)
  30. Dec 07 2020
    Motion for leave to proceed in forma pauperis filed by respondent Refugio Palomar-Santiago.
  31. Dec 07 2020
    Brief of respondent Refugio Palomar-Santiago in opposition filed.
  32. Oct 21 2020
    Motion to extend the time to file a response is granted and the time is extended to and including December 7, 2020.
  33. Oct 20 2020
    Motion to extend the time to file a response from November 5, 2020 to December 7, 2020, submitted to The Clerk.
  34. Oct 05 2020
    Petition for a writ of certiorari filed. (Response due November 5, 2020)