What if the feds no longer consider an offense “deportable”?

The United States government considers certain offenses as deportable. They are so heinous or against moral character to lead the deportation of an immigrant offender. But what if it later turns out that an offense that led to the deportation of an immigrant is no longer considered deportable? Can they come back?

This was the question in a recent case. In this case, the court convicted Mexican national of a felony shortly after getting permanent resident status. Due to this conviction, officials deported Refugio Palomar-Santiago. Mr. Palomar-Santiago later returned to the United States and, in 2017, prosecutors indicted him for illegal reentry. He stated the court should dismiss the indictment because the conviction that led to the original deportation was no longer deportable as it was not considered a crime of violence. The district court agreed and, on appeal, so did the 9th Circuit.

This would seem to make sense. If the crime was no longer deportable, why couldn’t he stay in the country? But, upon review, the Supreme Court disagreed. They said the case did not proceed in the required order. For these types of cases, the Supreme Court stated, Mr. Palomar-Santiago and anyone in a similar situation must follow the required steps. This means they need to meet three statutes. First, that the accused “exhausted any administrative remedies that may have been available to seek relief against the [removal] order,” second, that the removal proceedings led to an improper deprivation of the opportunity for judicial review and finally that the entry of order was “fundamentally unfair.”

The Supreme Court stated Mr. Palomar-Santiago had to go in order. He needed to meet step one and step two before he could move forward to step three.

What do I need to learn from this case?

That procedural steps are important. Even in cases where common sense seems to lead to a clear answer in your favor, you need to do things in order or else you could lose your case.