May 24, 2021
Agrees with IRLI that criminal aliens cannot undo past
WASHINGTON—Today the Supreme Court, in a unanimous ruling, refused to allow criminal aliens to stay in the United States following their unlawful reentry after their prior deportation for criminal conduct, reversing a Ninth Circuit Court of Appeals decision that had allowed such aliens to stay if the crime they were originally deported for was no longer, according to intervening court decisions, an “aggravated felony.” The Immigration Reform Law Institute (IRLI) had filed a friend-of-the-court brief with the Court urging just that result.
The alien petitioner in this case had been a lawful permanent resident of the United States, but following his conviction for felony drunk driving, then considered an aggravated felony, had been deported. He entered the country again unlawfully, was apprehended, and ordered removed again by an immigration judge. The Ninth Circuit ruled that this second removal order was invalid, because it was based on the earlier removal for felony drunk driving, a crime that the Supreme Court since then had found not to be an aggravated felony mandating removal under the immigration laws.
In an opinion by Justice Sotomayor, the Court held that the Ninth Circuit had flagrantly misconstrued a law that allowed “collateral” attacks on prior deportation orders only if the alien had exhausted administrative remedies, judicial review of the order had not been available, and the deportation order was “fundamentally unfair.” Since these conditions had not all been met here, the petitioner was foreclosed by statute from attacking his original deportation order, meaning that his second deportation order had to be reinstated. The dropping of felony drunk driving from the list of aggravated felonies since the first order, the Court found, was immaterial in light of this clear statutory limit on collateral attacks.
“This decision is encouraging for a number of reasons,” said Dale L. Wilcox, executive director and general counsel of IRLI. “First, protecting Americans from immigrants who turn out to be criminals is paramount, since such criminal aliens usually go on to commit more crimes if allowed to stay, and the Ninth Circuit had created a loophole weakening that protection. Second, today’s ruling shows that the full Supreme Court, without dissent, is capable of applying the law as written, even when immigration is concerned, and of reversing a lower court that had rewritten that law based on its own policy preferences. We applaud today’s decision for its sound logic, and for upholding the will of the American people as expressed through their representatives in Congress.”
The case is United States v. Palomar-Santiago, No. 20-437 (Supreme Court).
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