This morning’s unanimous U.S. Supreme Court decision in U.S. v. Palomar-Santiago, written by Justice Sonia Sotomayor, illustrates for the second time in a week the difficulty of getting the Court to apply new rules retroactively to help criminal defendants who should never have been in this position if the rule was decided in their favor in the first place. The case is a symptom both of the extended Whac-a-Mole game of deportation and immigrant reentry, but also how harsh immigration law is in practice for those who get into its grip. A Mexican immigrant with lawful permanent resident status was convicted of a DUI in 1991 and deported in 1998 on the basis of his conviction of a deportable crime. He reentered the country, and the immigration authorities located him in 2017 and criminally prosecuted him for illegal reentry. But in 2004, the Supreme Court determined (in another case) that the crime he was convicted of was never a proper ground for deportation. Was Palomar-Santiago guilty of illegally reentering after deportation, or innocent because he reentered after an improper deportation?
In Edwards v. Vannoy, the Court was to some extent on its own in deciding whether its constitutional criminal-procedure decisions applied retroactively to defendants whose time to appeal had run out and were going back to refight their convictions under the new rules. The Constitution is silent on the retroactivity question, and the Justices are divided on the proper source of tradition — or the habeas corpus statute — that authorized them to make decisions retroactive, or not. In Palomar-Santiago, however, even Justice Sotomayor acknowledged that the retroactivity question in the immigration context depends on how Congress wrote the statute — in this case, the Antiterrorism and Effective Death Penalty Act of 1996. The brief eight-page decision, joined in its entirety without additional comment from any Justice, indicates that the Court thought that the answer provided by the AEDPA was clear and should not have been disregarded by the Ninth Circuit:
Defendants charged with unlawful reentry “may not” challenge their underlying removal orders “unless” they “demonstrat[e]” that three conditions are met: (1) they have “exhausted any administrative remedies,” (2) they were “deprived . . . of the opportunity for judicial review,” and (3) “the entry of the order was fundamentally unfair.” 8 U. S. C. §1326(d). The requirements are connected by the conjunctive “and,” meaning defendants must meet all three.