Certiorari To The United States Court Of Appeals For The Ninth Circuit

No. 20–437. Argued April 27, 2021—Decided May 24, 2021

Respondent Palomar-Santiago, a Mexican national living in the United States, was convicted in California state court of felony DUI in 1988. At the time, lower courts understood that conviction to be an “aggravated felony” subjecting a noncitizen to removal from the United States. 8 U. S. C. §1227(a)(2)(A)(iii). Palomar-Santiago was removed following a hearing before an immigration judge and a waiver of his right to appeal. In 2017, Palomar-Santiago was found in the United States and indicted on one count of unlawful reentry after removal. See §1326(a). The statute criminalizing unlawful reentry provides that a collateral challenge to the underlying deportation order may proceed only if the noncitizen first demonstrates that (1) “any administrative remedies that may have been available” were exhausted, (2) “the opportunity for judicial review” was lacking, and (3) “the entry of the order was fundamentally unfair.” §1326(d). Palomar-Santiago moved to dismiss the indictment on the ground that his prior removal order was invalid in light of the 2004 holding in Leocal v. Ashcroft, 543 U. S. 1, that felony DUI is not an aggravated felony. Following Ninth Circuit precedent, the District Court and Court of Appeals held that Palomar-Santiago was excused from proving the first two requirements of §1326(d) because his felony DUI conviction had not made him removable. The District Court granted the motion to dismiss, and the Ninth Circuit affirmed.

Held: Each of the statutory requirements of §1326(d) is mandatory. Pp. 5–8.

  (a) The Ninth Circuit’s interpretation is incompatible with the text of §1326(d), which provides that defendants charged with unlawful reentry “may not” challenge their underlying removal orders “unless” they “demonstrat[e]” each of three conditions. Section 1326(d)’s first two requirements are not satisfied just because a noncitizen was removed for an offense that should not have rendered him removable. The substantive validity of a removal order is quite distinct from whether the noncitizen exhausted administrative remedies or was deprived of the opportunity for judicial review. P. 5.

  (b) Palomar-Santiago’s counterarguments are unpersuasive. First, he contends that further administrative review of a removal order is not “available” for purposes of §1326(a) when a noncitizen will not recognize a substantive basis to challenge an immigration judge’s conclusion that a prior conviction renders the noncitizen removable. The immigration judge’s error on the merits does not excuse the noncitizen’s failure to comply with a mandatory exhaustion requirement if further administrative review, and then judicial review if necessary, could fix that very error. Ross, 578 U. S. 632, distinguished.

  Second, Palomar-Santiago contends that §1326(d)’s prerequisites do not apply when a defendant argues that a removal order was substantively invalid. There can be no “challenge” to or “collateral attack” on the validity of substantively flawed orders, he reasons, because such orders are invalid when entered. This position ignores the plain meaning of both “challenge” and “collateral attack.”

  Lastly, Palomar-Santiago invokes the canon of constitutional avoidance. But this canon “has no application in the absence of statutory ambiguity.” United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 494. Here, the text of §1326(d) unambiguously forecloses Palomar-Santiago’s interpretation. Pp. 5–7.

813 Fed. Appx. 282, reversed and remanded.

 Sotomayor, J., delivered the opinion for a unanimous Court.


Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit

No. 20–382. Argued April 26, 2021—Decided May 24, 2021

Guam and the United States dispute liability for environmental hazards at the Ordot Dump, a site constructed on the island by the Navy in the 1940s and into which both parties allegedly have deposited waste over the decades. The Environmental Protection Agency (EPA) and Guam entered into a consent decree in 2004 that resolved litigation filed by the EPA alleging violations of the Clean Water Act. The decree in relevant part required Guam to pay a civil penalty and to take certain actions at the dump, and also stated that Guam’s compliance would constitute full settlement and satisfaction of the civil claims of the United States as alleged in the EPA’s complaint (i.e., claims under the Clean Water Act). More than a decade later, Guam sued the United States under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), alleging that the United States’ use of the dump exposed it to two possible actions under the Act. The first was a “cost-recovery” action under §107(a), which allows recovery of the costs of a “removal or remedial action” from “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” The second was a “contribution” action under §113(f), which provides that a party that “has resolved its liability to the United States…for some or all of a response action or for some or all of the costs of such action in [a] settlement may seek contribution from any person who is not [already] party to a [qualifying] settlement.” §113(f)(3)(B). The D. C. Circuit rejected Guam’s CERCLA claims against the United States. The court determined that although Guam had once possessed a CERCLA contribution claim based on the 2004 consent decree that sufficiently “resolved Guam’s liability” for the dump, that claim was time barred. The court further held that a party eligible to pursue a contribution claim under §113(f) cannot assert a cost-recovery claim under §107(a), leaving Guam no CERCLA remedy. As relevant here, Guam now contends that the 2004 consent decree did not give rise to a viable CERCLA contribution claim, leaving Guam free to pursue a cost-recovery action. The case turns on whether CERCLA authorizes a contribution claim only when a party resolves a CERCLA-specific liability or whether settlement of environmental liabilities under other laws will do.

Held: A settlement of environmental liabilities must resolve a CERCLA-specific liability to give rise to a contribution action under §113(f)(3)(B). The Court interprets §113(f)(3)(B) in light of its text and place within CERCLA’s comprehensive statutory scheme. Section 113(f)’s interlocking provisions governing the scope of a contribution claim, taken together and in sequence, anticipate a predicate CERCLA liability. See New Prime Inc. v. Oliveira, 586 U. S. ___, ___. Section 113(f)’s anchor provision—entitled “contribution”—explains the scope of contribution actions with reference to CERCLA’s other provisions, allowing contribution “during or following any civil action under §[1]06 of this title or under §[1]07 of this title.” §113(f)(1). The provision at issue here—recognizing a statutory right to contribution in the specific circumstance where a person “has resolved its liability” via “settlement,” §113(f)(3)(B)—exists within “‘the specific context’” of §113(f), which outlines the broader workings of CERCLA contribution. Merit Management Group, LP v. FTI Consulting, Inc., 583 U. S. ___, ___. Section 113(f)(3)(B)’s opening clause further ties itself to the CERCLA regime by permitting contribution after a party “has resolved its liability . . . for some or all of a response action or for some or all of the costs of such action.” (Emphasis added.) The anchor provision also discusses allocation of “response costs,” and the phrase “response action” appears dozens of times throughout the Act. That remedial measures under different environmental statutes might functionally overlap with a CERCLA response action does not justify reinterpreting §113(f)(3)(B)’s phrase “resolved its liability . . . for some or all of a response action” to instead mean “settled an environmental liability that might have been actionable under CERCLA.” Interpreting §113(f)(3)(B) to authorize a contribution right for a host of environmental liabilities arising under other laws would stretch the statute beyond Congress’ actual language. And because the word “resolve” conveys certainty and finality, it would be odd to interpret §113(f)(3)(B) as referring to a party that has “resolved its liability” if that party remains vulnerable to a CERCLA suit. The most natural reading of §113(f)(3)(B) is that a party may seek contribution under CERCLA only after settling a CERCLA-specific liability, as opposed to resolving environmental liability under some other law. The Government’s con trary arguments fail given §113(f)(3)(B)’s place in CERCLA’s comprehensive statutory scheme. Pp. 3–9.

950 F. 3d 104, reversed and remanded.

 Thomas, J., delivered the opinion for a unanimous Court.