In a third Ninth Circuit opinion from last Friday, a panel majority ruled (in United States v. Valdivias-Soto) that Rosendo Valdivias-Soto, an alien charged with illegally re-entering the United States, could challenge his removal order even though he had satisfied only one of the three conjunctive requirements set forth in a federal statute.
In her dissent, Judge Sandra Ikuta explains that the Supreme Court in its 2021 ruling in United States v. Palomar-Santiago—a unanimous opinion written by Justice Sotomayor—“made clear that meeting each of these statutory requirements is mandatory.” She points out that Palomar-Santiago “overruled a long line of Ninth Circuit cases concluding that where one statutory requirement was met, the alien was automatically excused from demonstrating the other two.”
Ikuta concludes that Valdivias-Soto did not meet any of the three requirements. But even if the majority were correct that he had satisfied one of them, its conclusion that he was not required to satisfy the other two “revives” the “discredited precedent” that Palomar-Santiago “swept away.”
If the en banc Ninth Circuit does not rehear and reverse this ruling, look for a summary reversal by the Supreme Court down the road.