FILED United States Court of Appeals Tenth Circuit PUBLISH February 4, 2020 UNITED STATES COURT OF APPEALS Christopher M. Wolpert Clerk of Court FOR THE TENTH CIRCUIT _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-2168 RODOLFO GONZALEZ-FIERRO, a/k/a Martin Marquez-Rico, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:17-CR-02771-JCH-1) _________________________________ Brian A. Pori, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant Rodolfo Gonzalez-Fierro. C. Paige Messec, Assistant United States Attorney (John C. Anderson, United States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee United States of America. _________________________________ Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges. _________________________________ EBEL, Circuit Judge. _________________________________ 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. 2 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. I. BACKGROUND As we explain in greater detail below, authorities found Gonzalez-Fierro1 unlawfully in the United States on at least two occasions. Border Patrol agents found him having just crossed the U.S.-Mexico border in 2009, which resulted in his expedited removal. In 2017, authorities again discovered him in the United States and this time charged him with the crime of unlawfully reentering the United States after a prior removal—the 2009 expedited removal. This direct criminal appeal stems from that 2017 prosecution. ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals