PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-4133 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE BENJAMIN GUZMAN-VELASQUEZ, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, District Judge. (3:16-cr-00151-MHL-1) Argued: January 31, 2019 Decided: March 28, 2019 Before MOTZ and QUATTLEBAUM, Circuit Judges, and DUNCAN, Senior Circuit Judge. Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Quattlebaum and Senior Judge Duncan joined. ARGUED: Laura Jill Koenig, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Daniel Taylor Young, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, S. David Schiller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. DIANA GRIBBON MOTZ, Circuit Judge: When Jose Benjamin Guzman-Velasquez returned to the United States after being deported, the government charged him with the crime of illegal reentry. Guzman moved to dismiss the indictment, relying solely on United States v. Mendoza-Lopez, 481 U.S. 828 (1987), which held that an administrative removal proceeding marred by due process defects that foreclosed judicial review could not serve as a basis for criminal conviction. The district court denied Guzman’s motion. For the reasons that follow, we affirm. I. On December 31, 1998, Guzman, a citizen of El Salvador, entered the United States without authorization. That same day, the federal government initiated removal proceedings. An immigration judge granted Guzman voluntary departure; when he failed to timely depart, the grant converted into a removal order. Approximately a year later, in response to a series of earthquakes, Attorney General John Ashcroft designated El Salvador for the Temporary Protected Status (TPS) program. See 66 Fed. Reg. 14,214, 14,214 (Mar. 9, 2001). TPS “allows eligible nationals of a foreign state to temporarily remain in the United States during the pendency of that state’s designation.” Cervantes v. Holder, 597 F.3d 229, 231 (4th Cir. 2010). Once granted, the government “shall not remove” an individual with TPS. 8 U.S.C. § 1254a(a)(1)(A). Salvadorans were eligible for TPS if they “ha[d] been ‘continuously physically present’ in the United States since March 9, 2001,” “ha[d] ‘continuously resided’ in the United States since February 13, 2001,” and satisfied other 2 statutory requirements. 66 Fed. Reg. at 14,214 (quoting 8 U.S.C. §§ 1254a(c)(1)(A)(i) and (ii)). Guzman’s attorney submitted a TPS application on his behalf. The Immigration and Naturalization Service (INS) requested additional documentation as to Guzman’s continuous physical presence and continuous residence in the United States. Although the relevant documentation was present in the INS’s file, it was not appended to the TPS application as required, and Guzman’s attorney did not timely respond to the inquiry. As a result, United States Citizenship and Immigration Services (USCIS) 1 denied Guzman’s TPS application. The agency notified Guzman’s lawyer that he could appeal within 30 days and indicated that it ...
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