United States v. Guzman

998 F.3d 562

UNITED STATES of America, Plaintiff - Appellee,

v.Saul Quinteros GUZMAN, a/k/a Saul Quinteros-Guzman, a/k/a Saul Quinters Guzman, Defendant - Appellant.

Law Professors, Immigration Scholars, and Clinicians, Amici Supporting Appellant.

No. 19-4740

United States Court of Appeals, Fourth Circuit.

Argued: January 26, 2021

Decided: May 25, 2021

ARGUED: Erin Margaret Trodden, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Harrisonburg, Virginia, for Appellant. Kathryn Anne Rumsey, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Juval O. Scott, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Thomas Cullen, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. Kari Hong, Ninth Circuit Appellate Program, BOSTON COLLEGE LAW SCHOOL, Newton, Massachusetts; Stephen Manning, INNOVATION LAW LAB, Portland, Oregon, for Amici Curiae.

Before NIEMEYER, KING, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge King and Judge Rushing joined.

NIEMEYER, Circuit Judge:

Saul Quinteros Guzman, a native and citizen of El Salvador, was found in the United States after having previously been removed under the expedited removal procedure of 8 U.S.C. § 1225(b)(1). He was charged with reentry without permission after having been removed, in violation of 8 U.S.C. § 1326(a). He filed a motion to dismiss his indictment, maintaining that his earlier removal was invalid as fundamentally unfair under § 1326(d) because he was denied the right to counsel, in violation of the Due Process Clause and the Administrative Procedure Act ("APA"), 5 U.S.C. § 555(b), and that he suffered prejudice. The district court denied his motion, and Guzman was convicted. On appeal, we conclude that the Due Process Clause and the APA did not apply to his removal proceeding and therefore affirm.

I

Guzman crossed the Rio Grande into the United States without inspection or an entry document at 9:30 p.m. on March 16, 2016. Soon thereafter, immigration officers encountered him near McAllen, Texas, a city contiguous to the river, and placed him in an expedited removal proceeding under 8 U.S.C. § 1225(b)(1). When Guzman was unable to produce a valid entry document, the officers notified him that he was inadmissible and invited him to provide information otherwise, including whether he feared returning to his home country. Guzman confirmed that he was from El Salvador and that he came to the United States "to look for work." He also stated that he did not "fear that [he] [would] be persecuted or tortured" if sent back to El Salvador. After Guzman was advised that if he was seeking asylum, he would be provided counsel, he decided not to seek asylum and instead stated that he would to return to El Salvador. Accordingly, immigration officers issued Guzman an order of removal on March 18, 2016, under the expedited removal procedure, and on March 31, he was removed.

Over two years later, on October 17, 2018, immigration officers again encountered Guzman, this time in the Western District of Virginia, where he had been arrested for a hit-and-run and driving without a license. Guzman had not received permission of the Attorney General or the Secretary of Homeland Security to be in the United States.

After Guzman was charged with illegal reentry, in violation of 8 U.S.C. § 1326(a), he filed a motion to dismiss the indictment, claiming that his 2016 removal order was invalid because he had been denied the right to counsel, as guaranteed by the Due Process Clause and afforded by the APA. That denial, he claimed, prejudiced him because counsel would have advised him to seek a withdrawal of his application for admission, which, if allowed, would have enabled him to "depart immediately" without the issuance of a removal order. 8 U.S.C. § 1225(a)(4). In such event, his 2018 presence in the United States would not have violated § 1326(a).

The district court conducted a hearing and thereafter denied Guzman's motion. The court held first that the Immigration and Nationality Act ("INA"), as implemented, did not provide Guzman with a statutory or regulatory right to counsel in expedited removal proceedings — unless asylum was asserted or a fear of persecution expressed — and that the APA's right to counsel provision was inapplicable to immigration proceedings. The court then addressed Guzman's due process claim and, after applying Mathews v. Eldridge , 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), found no due process right to counsel. Finally, the court concluded that Guzman was not prejudiced by the denial of counsel because there was no "reasonable probability" that representation by counsel would have changed the outcome.

Guzman thereafter pleaded guilty, reserving his right to appeal the district court's denial of his motion to dismiss the indictment based specifically on his argument that he had a due process right and statutory right under the APA to counsel in his expedited removal proceeding and that the denial of that right prejudiced him. The district court sentenced him to two years’ probation.

From the court's judgment dated September 25, 2019, Guzman filed this appeal.

II

Section 1326(a), under which Guzman was convicted, provides that "any alien who ... has been ... deported [ ] or removed ... and thereafter enters ... or is at any time found in[ ] the United States" without permission shall be punished. 8 U.S.C. § 1326(a) (emphasis added). Thus, to prove the offense, the government must establish: (1) that the defendant is an alien; (2) that he was deported or removed from the United States; (3) that he thereafter reentered or was found in the United States; and (4) that he lacked permission to reenter or be in the United States. See United States v. Ayon-Brito , 981 F.3d 265, 269 (4th Cir. 2020).

Guzman filed a motion to dismiss his indictment, challenging the validity of the second element — his prior removal. He contended that during the 2016 removal proceeding, which was conducted under 8 U.S.C. § 1225(b)(1)(A)(i), he was not "told he had a right to counsel." (Emphasis added). As he now articulates his claim, he argues that "[t]he expedited removal procedure prohibits an alien from accessing counsel" and thus "denies aliens in deportation proceedings the due process required by the Fifth Amendment of the Constitution, and conflicts with the requirements of the Administrative Procedure Act." (Emphasis added). And he alleges further that the denial of this right to counsel prejudiced him because an attorney could have advised him to request withdrawal of his application under § 1225(a)(4), which, if granted, would have precluded a removal order and consequently a § 1326(a) violation. At bottom, Guzman argues that the underlying removal was invalid because it was "fundamentally unfair," thus requiring that the § 1326(a) charge be dismissed. 8 U.S.C. § 1326(d) (authorizing collateral attacks on underlying removal orders as "fundamentally unfair").

Because Guzman did not have an opportunity to challenge his 2016 removal earlier — as his expedited removal was not subject to review — he became entitled to mount a challenge when he was charged under § 1326(a) and the 2016 removal became an element of the criminal offense. As we have held, "when an expedited removal is alleged to be an element in a criminal prosecution, the defendant in that prosecution must, as a matter of due process, be able to challenge the element — i.e. , to contend that the removal was invalid — if he did not have a prior opportunity to do so ." United States v. Villarreal Silva , 931 F.3d 330, 335 (4th Cir. 2019) (one emphasis omitted and one added); see also United States v. Mendoza-Lopez , 481 U.S. 828, 837–38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). And "[t]o demonstrate fundamental unfairness" under § 1326(d), Guzman "must show that (1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects." United States v. El Shami , 434 F.3d 659, 664 (4th Cir. 2005).

The precise nature of Guzman's claim is not entirely clear. In one instance, he asserted that "he was not advised of his right to counsel," and in another, he stated that the expedited procedure under which he was removed "prohibit [ed ] [him] from accessing counsel." (Emphasis added). Because both formulations focus on his opportunity to obtain counsel, and not on any claim that the government was required to provide counsel, we take his position to be that the expedited procedure did not provide him with adequate notice and give him an adequate opportunity to obtain counsel — whether by advising him of it or prohibiting him from doing so. The nature of that claim is perhaps sharpened when considered in contrast to § 1229a(b)(4), which provides that in connection with a hearing before an immigration judge, "the alien shall have the privilege of being represented , at no expense to the Government, by counsel of the alien's choosing." 8 U.S.C. § 1229a(b)(4)(A) (emphasis added); see also id . § 1362 ("In any removal proceedings before an immigration judge and in any appeal proceedings ..., the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel" (emphasis added)). Thus, we understand Guzman's argument to be that because the procedure failed to provide him the opportunity to obtain counsel during the interview with the immigration officer who issued the expedited removal order, it effectively denied him the right to counsel , as protected by the Due Process Clause and afforded by the APA.

At the outset, it is undisputed that the text of the INA's expedited removal procedure does not require that the alien be advised of a right to counsel or be accommodated in an effort to obtain counsel. Generally, the INA's comprehensive...