Palomar-Santiago Practice Advisory (NIPNLG)

Matthew S. Vogel, NIPNLG, Nov. 24, 2021

"On May 24, 2021, the U.S. Supreme Court issued United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021), a federal criminal case concerning the requirements for a successful collateral attack of an underlying administrative removal order in an illegal re-entry prosecution. In Palomar-Santiago, the Court held that all three requirements of 8 U.S.C. § 1326(d) – administrative exhaustion, the deprivation of judicial review, and fundamental unfairness – are mandatory. The Court’s decision abrogates current Ninth Circuit practice reflected in United States v. Ochoa, 861 F.3d 1010 (9th Cir. 2017), which views the administrative exhaustion and deprivation of judicial review prongs as “excused” or “satisfied” in cases where an immigration judge has ordered a noncitizen removed by erroneously determining that a prior conviction was a removable offense. It is, nevertheless, a narrow decision, which leaves open alternative pathways to collaterally attack similarly invalid removal orders through § 1326(d). This advisory first reviews the case history and the precedent governing the legal situation Mr. Palomar-Santiago was in when he was charged with illegal re-entry. It then addresses both Mr. Palomar-Santiago’s and the government’s arguments before the Court and the Court’s decision. Finally, the advisory turns to how the Court’s decision affects advocacy strategies for future collateral attacks on removal orders under § 1326(d). ... "

"Matthew Vogel joins NIPNLG from the Orleans Public Defenders (OPD) in New Orleans, where for five years as a staff attorney, he built OPD’s immigration practice, providing immigration consequences advising, and training on the immigration consequences of criminal legal system involvement. Matt also worked on OPD’s death penalty and juvenile life without parole defense teams, and carried a docket of upper-level felonies and misdemeanors. He has clerked for the Honorable Keith P. Ellison of the U.S. District Court for the Southern District of Texas; and spent 8 years living and working at the New York City Catholic Worker, a house of hospitality for homeless people. Matt graduated from Harvard University, Yale Divinity School, and Yale Law School."