Can Removal Orders be Scrubbed?

March 5, 2021

IRLI urges Supreme Court to uphold law as written

WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a friend-of-the-court brief in the U.S. Supreme Court asking the Court to reverse a Ninth Circuit Court of appeals holding that aliens may attempt to erase prior orders of removal against them even when they can allege no due process violation in those orders, and even when they do not meet the terms of a statute that allows attacks on prior removal orders in some circumstances.

An alien who comes back into the country illegally after having been deported pursuant to a final order of removal commits a federal crime. Under statutory law, an alien prosecuted for that crime may try to argue that his prior removal order was invalid, but only if he can show both that he was not given due process of law under the Constitution in his removal proceeding and that he had no opportunity for judicial review of that proceeding. The Ninth Circuit, however, found these requirements too restrictive, and held that without meeting them, an alien may still attack a prior removal order on the basis that the law has changed since it was issued, and what was then a crime of moral turpitude justifying removal is not now considered one by the courts.

In its brief, IRLI points out that the statutory text is unmistakably clear, as every other circuit court has held, and provides no basis for the Ninth Circuit’s conclusion. IRLI also shows that, when it comes to the Due Process Clause, the law frowns on the kind of time travel the Ninth Circuit endorsed, on the principle that retroactive due process violations—which are violations of the Constitution—are not created merely by intervening changes in the law.

“This case is yet another example of how activist lawyers and even judges endlessly seek to loosen our immigration laws in the interests of keeping criminal aliens and other removable aliens in the country,” said Dale l. Wilcox, executive director and general counsel of IRLI. “Only if these attempts are fought at every turn—as we remain dedicated to doing—do we have a hope that our system will work as intended by Congress, let alone promote the sovereignty and safety of the American people.”

The case is United States v. Palomar-Santiago, No. 20-437 (Supreme Court).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]