A defendant seeking to attack a prior order of removal must satisfy all three prongs of 8 U.S.C. Sec. 1326(d), the U.S. Supreme Court ruled May 24 in United States v. Polomar-Santiago.
In 1998, Refugio Palomar-Santiago was removed from the country based on a conviction for driving under the influence (DUI).  He later returned to the U.S. and was charged with unlawful re-entry in violation of 8 U.S.C. Sec. 1326(a).
Between the time Palomar-Santiago was removed and his indictment, the Supreme Court ruled that offenses like DUI do not make noncitizens removable.
As a defense to his re-entry charge, Palomar-Santiago sought to challenge his original removal order.
Under Sec. 1326(d), a defendant “may not” bring such a collateral attack “unless” they show that (1) they have exhausted any administrative remedies that may have been available to seek relief from the removal order; (2) the removal proceedings improperly deprived them of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.
The Ninth Circuit held Palomar-Santiago was excused from making the first two showings because his prior removal was based on a conviction that was later found to not be a removable offense.
A unanimous Supreme Court reversed.
“The Ninth Circuit’s interpretation is incompatible with the text of Sec. 1326(d),” Justice Sotomayor wrote for the Court.
“The requirements are connected by a conjunctive ‘and,’ meaning defendants must meet all three,” the Court said.
“Without the benefit of the Ninth Circuit’s extrastatutory exception, Sec. 1326(d)’s first two procedural requirements are not satisfied just because a noncitizen was removed for an offense that did not in fact render him removable,” the Court said.  
“Indeed, the substantive validity of a removal order is quite distinct from whether the noncitizen exhausted his administrative remedies (by appealing the immigration judge’s decision to the [Board of Immigration Appeals]) or was deprived of the opportunity for judicial review (by filing a petition for review of a BIA decision with a Federal Court of Appeals).”
“This Court holds that each of the statutory requirements of Sec. 1326(d) is mandatory,” the Court concluded.