Summary
In *United States v. Gonzalez-Fierro*, the Tenth Circuit held that 8 U.S.C. § 1225(b)(1)(D) is unconstitutional because it deprives a defendant charged with illegal reentry under § 1326(a) of due process by barring judicial review of the fundamental fairness of a prior expedited removal order used as an element of the offense. Applying *Mendoza-Lopez*, the court concluded that the government cannot use an unreviewed expedited removal to prove a § 1326(a) violation without providing some meaningful review. However, the court affirmed the conviction because the defendant failed to show that his 2009 expedited removal was fundamentally unfair under § 1326(d)'s three-part test, including a lack of procedural error or prejudice. The case establishes that while § 1225(b)(1)(D) is unconstitutional in this context, defendants still bear the burden of proving fundamental unfairness to collaterally attack a prior expedited removal.
Topics
Practice areas
Questions Presented
- Whether 8 U.S.C. § 1225(b)(1)(D) is unconstitutional because it deprives a defendant charged under § 1326(a) of the opportunity to challenge the fundamental fairness of a prior expedited removal order used as an element of the offense.
- Whether the defendant's 2009 expedited removal was fundamentally unfair.
Holdings
- Section 1225(b)(1)(D) is unconstitutional because it deprives the defendant of due process by allowing the Government to use an unreviewed expedited removal order to prove an element of a § 1326(a) criminal offense, in violation of the principle from Mendoza-Lopez that there must be some meaningful review of an administrative proceeding that plays a critical role in the imposition of a criminal sanction.
- The defendant failed to establish that his 2009 expedited removal was fundamentally unfair because he did not show any procedural error or prejudice.
Key quotations
“Our cases establish that where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding.” (8)
“the district court erred in deciding it lacked jurisdiction to review the fundamental fairness of Gonzalez-Fierro’s 2009 expedited removal proceeding. To the extent 8 U.S.C. § 1225(b)(1)(D) strips federal courts of jurisdiction to review the fundamental fairness of an expedited removal proceeding before the Government can use that expedited removal to prove a § 1326(a) criminal offense, § 1225(b)(1)(D) is unconstitutional.” (11)
“Consistent with Mendoza-Lopez, we conclude that 8 U.S.C. § 1225(b)(1)(D) is unconstitutional because it allows the Government to use an expedited removal to prove a § 1326(a) criminal offense without any review of that administrative proceeding. Providing such review here, we further conclude that Gonzalez-Fierro failed to establish that his 2009 expedited removal was fundamentally unfair. On that basis, we AFFIRM his § 1326(a) conviction.” (21)
Factual background
The defendant, a Mexican citizen, was apprehended in 2009 shortly after crossing the border near Columbus, New Mexico. He was found within 100 miles of the border, had no immigration documents, and was not seeking asylum. Immigration officials initiated expedited removal proceedings under § 1225(b)(1). He gave a sworn statement indicating he was 19 years old and had illegally entered to visit his mother. He was ordered removed and served a misdemeanor sentence for unlawful entry. In 2017, he was discovered in Santa Fe, New Mexico, and indicted for unlawful reentry under § 1326(a) based on the 2009 expedited removal.
Procedural history
The defendant was indicted under 8 U.S.C. § 1326(a) for unlawful reentry after a prior expedited removal. He moved to dismiss the indictment, arguing that his prior expedited removal was fundamentally unfair and that the court had jurisdiction to review it under Mendoza-Lopez. The district court denied the motion, ruling it lacked jurisdiction and alternatively that the removal was not fundamentally unfair. The defendant then entered a conditional guilty plea and appealed.