Stevie Gadalean | Are Deported Non-Citizens Seeking Return to U.S. Required to Exhaust Administrative Remedies Under Federal Law?

Background:

8 U.S.C. §1326 is a federal statute enacted in 1996 concerning the “reentry of removed aliens.” This statute provides a legal framework for non-citizen immigrants, referred to as aliens, who have been deported from the United States and wish to return or have already re-entered. 8 U.S.C.A. § 1326. This statute states that it is a federal offense for any non-citizen immigrant to attempt to re-enter, successfully re-enter, or be found in the United States after removal. See id.

A safeguard exists in 1326(d) allowing non-citizen immigrants to challenge the validity of their removal order. Three elements must be met in order to successfully challenge their removal order: (1) Exhausted any administrative remedies that may have been available to seek relief against the order ; (2) the deportation proceeding at which the order was issued was improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. See id.

The Supreme Court ruled on 8 U.S.C. §1326(d) in the 2021 case United States v. Palomar-Santiago, 593 U.S. ____ (2021). In Palomar-Santiago, the Court held that noncitizens who have unlawfully re-entered the United States after having been previously removed must demonstrate all three elements of §1326(d) in order to challenge the removal order. See id.

The takeaway from Palomar-Santiago is the mandatory nature of the statutory requirements under §1326(d), effectively ruling out equitable exceptions like futility unless Congress explicitly allows them.

Issue: 

Can the Supreme Court’s holding in United States v. Palomar-Santiago be read to foreclose the option for an immigrant to excuse their failure to exhaust their administrative remedies under 8 U.S.C. §1326(d) in all cases?

The Split:

Fourth Circuit:

The Fourth Circuit says no.

In United States v. Castro-Aleman, the Fourth Circuit held that compliance with the three mandatory elements of Palomar-Santiago did not eliminate excuses for procedural errors. See 141 F.4th 576 (4th Cir. 2025). Richardson, Circuit Judge, held that the Immigration Judge violated due process by improperly instructing Defendant Castro on how to apply for asylum. See id at 579.

The Defendant was an El Salvadorian immigrant who came to the United States when he was eight years old and received a social security number, work permit, and driver’s license. See id at 578-79. “The removal proceeding before the I.J. violated the due process clause, he claimed, meaning that the removal itself was the product of an unconstitutional proceeding and therefore could not be used as the basis for an illegal reentry charge.” Id.

Sixth Circuit:

The Sixth Circuit says yes.

In United States v. Flores-Perez, the Sixth Circuit held that the three requirements to challenge a removal order need to be met in totality with no exceptions. 1 F.4th 454, 458 (6th Cir. 2021). Flores-Perez failed to exhaust his administrative remedies, despite plain notice of the removal order as reflected by his 2009 deportation. See id. “Even if Flores-Perez's removal was flawed, that error “does not excuse [Flores-Perez]’s failure to comply with a mandatory exhaustion requirement because “administrative review, and then judicial review if necessary, could fix [the] error,” if any.” See id.

In sum, flawed judicial procedure does not override the defendant’s failure to comply fully with the three elements of 8 U.S.C. §1326(d).

Looking Forward:

It is uncertain how this circuit split will play out. However, with a more conservative-leaning Supreme Court in a presidential administration that has imposed strict immigration restrictions, the Sixth Circuit’s strict interpretation of an absolute requirement to meet the three elements of 8 U.S.C. §1326(d) may prevail.

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