United States v. Palomar-Santiago

Refugio Palomar-Santiago, a Mexican national, was granted permanent resident status in the United States in 1990. In 1991, he was convicted of a felony DUI in California, and he was subsequently deported because a DUI is a “crime of violence” under 18 U.S.C. § 16, and felony DUI is an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43). Three years later, the U.S. Court of Appeals for the Ninth Circuit decided in United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001), that a DUI is not a crime of violence and later held that classification to apply retroactively. United States v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2013). Palomar-Santiago returned to live in the United States, this time without authorization. He was indicted for illegal reentry after deportation under 8 U.S.C. § 1326. He moved to dismiss the indictment under 8 U.S.C. § 1326(d), which requires a district court to dismiss a § 1326 indictment if the defendant proves (1) he exhausted any administrative remedies that may have been available to seek relief against the order; (2) he was deprived of the opportunity for judicial review at the deportation hearing; and (3) that the deportation order was fundamentally unfair. However, under Ninth Circuit precedent, a defendant does not need to prove the first two elements if he can show the crime underlying the original removal was improperly characterized as an aggravated felony and does not need to show the third element if he can show the removal should not have occurred at all. The district court held that Palomar-Santiago met his burden in showing his crime was improperly characterized as an aggravated felony and that he was wrongfully removed from the United States. On appeal, the federal government disputed that circuit precedent required the result the district court reached but argued that the precedent is wrong. Lacking authority to overturn circuit precedent, the Ninth Circuit panel affirmed without addressing the merits of the government’s claims.