United States v. Gonzalez-Fierro

• Decision Date: 04 February 2020
• Docket Number: No. 18-2168,18-2168
• Citation: 949 F.3d 512
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Rodolfo GONZALEZ-FIERRO, a/k/a Martin Marquez-Rico, Defendant - Appellant.

949 F.3d 512

UNITED STATES of America, Plaintiff - Appellee,

v.Rodolfo GONZALEZ-FIERRO, a/k/a Martin Marquez-Rico, Defendant - Appellant.

No. 18-2168

United States Court of Appeals, Tenth Circuit.

FILED February 4, 2020

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, 107 S.Ct. 2148, 95 L.Ed.2d 772 (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 reentering 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.

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.

A. Gonzalez-Fierro’s 2009 expedited removal

On May 1, 2009, at approximately 9:40 p.m., the Remote Video Surveillance System alerted Border Patrol agents that two people were unlawfully crossing the U.S.-Mexico border several miles west of the port of entry at Columbus, New Mexico. Responding agents discovered Gonzalez-Fierro and another person hiding in the brush. Agents arrested Gonzalez-Fierro after he acknowledged he was a Mexican citizen and admitted that he had unlawfully entered the United States. Because he was apprehended within 100 miles of the border, had no immigration documents permitting him to be in the United States, could not prove that he had been in the United States for more than fourteen days, and indicated that he was not seeking asylum, immigration officials initiated expedited removal proceedings against him under 8 U.S.C. § 1225(b)(1). See 8 U.S.C. § 1225(b)(1)(A)(iii) ; Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877 -01, 48,877-78 (Aug. 11, 2004).

In a sworn statement made during those proceedings, Gonzalez-Fierro indicated, among other things, that his date of birth was June 12, 1989, making him at that time nineteen years old (a month shy of twenty); he was a Mexican citizen, as were both of his parents; he had no immigration documents that allowed him to enter or remain in the United States legally; he had unlawfully entered the United States in order to visit his mother, who lived in Santa Fe, New Mexico, and to find work there; no one had filed "any petitions" on his behalf; and he had once before been apprehended for unlawfully entering the United States and, as a result, was sent back to Mexico. (I R. 43-44.)

Based on that information, immigration officials ordered Gonzalez-Fierro removed from the United States. Before being returned to Mexico, he pled guilty to unlawfully entering the United States, a misdemeanor, see 8 U.S.C. § 1325(a), for which he served seven days in custody.

B. Gonzalez-Fierro is discovered in the United States in 2017

As a result of a tip, Department of Homeland Security ("DHS") officers discovered Gonzalez-Fierro in Santa Fe, New Mexico, in September 2017. This led to the criminal prosecution at issue here. A grand jury indicted Gonzalez-Fierro on one count of violating 8 U.S.C. § 1326(a) by unlawfully re-entering the United States after a prior removal, his May 2009 expedited removal.²

"When the [G]overnment prosecutes a noncitizen for illegal reentry [under § 1326(a) ], it typically must prove two things: (1) that the noncitizen left the United States with an outstanding order of removal against him and (2) that afterward, the noncitizen entered, tried to enter, or was found in the United States." United States v. Almanza-Vigil, 912 F.3d 1310, 1316 (10th Cir. 2019). Gonzalez-Fierro moved to dismiss the indictment against him, arguing that the Government could not use his prior 2009 expedited removal to prove the first element of the charged § 1326(a) offense because that prior expedited removal proceeding was fundamentally unfair. In making that argument, Gonzalez-Fierro invoked the § 1326(d) mechanism Congress provided to defendants charged with a § 1326(a) unlawful re-entry offense to challenge the validity of their prior removal. Section 1326(d) specifically provides that,

[i]n a criminal proceeding under this section [ § 1326 ], an alien may not challenge the validity of the deportation order described in subsection (a)(1) or subsection (b) unless the alien demonstrates that--

(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;

(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and

(3) the entry of the order was fundamentally unfair.

As we will discuss, Gonzalez-Fierro’s problem is that Congress has provided that this § 1326(d) mechanism allowing a § 1326(a) defendant to challenge his prior removal expressly does not apply to expedited removals: "In any action brought against an alien under ... section 1326 of this title, the court shall not have jurisdiction to hear any claim attacking the validity of an order of [expedited] removal entered under subparagraph (A)(i) or (B)(iii)." 8 U.S.C. § 1225(b)(1)(D).

The district court (although without citing § 1225(b)(1)(D) ) denied Gonzalez-Fierro’s motion to dismiss the indictment, ruling that the court did not have jurisdiction to review Gonzalez-Fierro’s 2009 expedited removal and, alternatively, that Gonzalez-Fierro had failed to show that his 2009 expedited removal was fundamentally unfair. Gonzalez-Fierro then conditionally pled guilty to the § 1326(a) unlawful re-entry charge, preserving his right to bring this appeal challenging the denial of his motion to dismiss the indictment. See Fed. R. Crim. P. 11(a)(2).³

II. DISCUSSION

A. Due process requires that, notwithstanding 8 U.S.C. § 1225(b)(1)(D), federal courts have jurisdiction to review the fundamental fairness of an expedited removal before the United States can use it to prove a § 1326(a) charge

In his motion to dismiss the indictment charging him with violating 8 U.S.C. § 1326(a), Gonzalez-Fierro asked the district court to review the fundamental fairness of his prior expedited removal. In doing so, he invoked the mechanism Congress provided in 8 U.S.C. § 1326(d) and, quoting Mendoza-Lopez, 481 U.S. at 837-38, 107 S.Ct. 2148, he asserted that he was entitled to "some meaningful review" of his prior administrative removal proceeding before the United States could use that prior expedited removal to convict him of a crime under § 1326(a). (I R. 24.) But, as we previously mentioned, 8 U.S.C. § 1225(b)(1)(D) precludes such review: "In any action brought against an alien under ... section 1326 of this title, the court shall not have jurisdiction to hear any claim attacking the validity of an order of [expedited] removal entered under subparagraph (A)(i) or (B)(iii)." We conclude that § 1225(b)(1)(D) unconstitutionally deprives § 1326(a) defendants such as Gonzalez-Fierro, who have had a previous expedited removal under 8 U.S.C. § 1225(b)(1), of due process because it allows the Government to use that unreviewed expedited removal order to convict them of the § 1326(a) criminal offense.

1. Our review is de novo

As an initial matter, we reject the Government’s contention that we should review the constitutionality of § 1225(b)(1)(D), if at all, for plain error because Gonzalez-Fierro never challenged that statute in the district court. Gonzalez-Fierro has, all along, invoked § 1326(d) ’s review mechanism and cited to Mendoza-Lopez for the proposition that due process entitles him to "some meaningful review" of the fundamental fairness of his prior, previously unreviewed, expedited removal...