https://cases.justia.com/federal/appellate-courts/ca10/18-2168/18-2168-2020-02-04.pdf?ts=1580846433
U.S. v. Gonzalez-Fierro, 10th Cir., 03-04-20, published
PANEL: TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.
OPINION BY: Judge Ebel
CONCURRING OPINION: Chief Judge Tymkovich
KEY QUOTE FROM MAJORITY:
In this direct criminal appeal, Defendant Rodolfo Gonzalez-Fierro, a Mexican citizen, challenges his conviction for unlawfully re-entering the United States after a prior removal, in violation of 8 U.S.C. § 1326(a). That conviction was based in part on Gonzalez-Fierro’s prior expedited removal from the United States in 2009. Due process requires that, before the United States can use a defendant’s prior removal to prove a § 1326(a) charge, “there must be some meaningful review” of the prior administrative removal proceeding. United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987). In light of that, Congress has provided a mechanism, set forth in 8 U.S.C. § 1326(d), for a defendant charged with a § 1326(a) offense to challenge the fundamental fairness of his prior unreviewed removal. But, pursuant to 8 U.S.C.
§ 1225(b)(1)(D), that § 1326(d) mechanism applies only to prior formal removal orders, and not to prior expedited removal orders like Gonzalez-Fierro’s. Expedited removals apply to undocumented aliens apprehended at or near the border soon after unlawfully entering the United States. Different from formal removals, expedited removals are streamlined—generally there is no hearing, no administrative appeal, and no judicial review before an expedited removal order is executed. Applying the Supreme Court’s reasoning in Mendoza-Lopez, we conclude that § 1225(b)(1)(D) is unconstitutional because it deprives a defendant like Gonzalez-Fierro of due process; that is, § 1225(b)(1)(D) allows the Government to use an unreviewed expedited removal order to convict a defendant of the § 1326(a) offense of unlawfully re- entering the United States after a prior removal.Unconstrained by § 1225(b)(1)(D), we review here Gonzalez-Fierro’s 2009 expedited removal order. Doing so, we conclude that he has failed to establish that that removal was fundamentally unfair. On that basis, having jurisdiction under 28 U.S.C. § 1291, we AFFIRM Gonzalez-Fierro’s § 1326(a) conviction.
KEY QUOTE FROM CHIEF JUDGE TYMKOVICH’S CONCURRING OPINION:
I agree with the majority’s determination that Mr. Gonzalez-Fierro’s 2009 expedited-removal order was not fundamentally unfair under 8 U.S.C.
§ 1326(d)(3). Nevertheless, I do not believe we possess jurisdiction to reach that question.I would AFFIRM the judgment of the district court that it lacked jurisdiction to consider the merits of the prior removal order.
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I think there are lots of Constitutional problems with “expedited removal.” I’m not sure, however, that this decision will have much immediate impact because:
- It’s only one Circuit and a “low immigration volume Circuit” at that;
- It’s a “split opinion;”
- It’s in the criminal, rather than the civil removal, context;
- The court does its own judicial review of the expedited removal order and finds it to be fundamentally fair in this particular case.
On the other hand, and notwithstanding Chief Judge Tymkovich’s concurring opinion, the facial lack of Due Process in the essentially un-reviewable “expedited removal” process seems quite evident.
So, hopefully advocates can eventually leverage this into an overall determination that there must be meaningful judicial review of expedited removal. This is particularly important because the Administration’s attempt to expand expedited removal to its maximum statutory scope is currently “on hold” pending further judicial review.
We’ll just have to wait and see how this plays out.
PWS
02-05-20