Illegal Reentry Defendant Can Challenge Prior Expedited Removal, But No Due Process Violation

US v. Silva: Silva has a history of entering the United States illegally and being quickly removed. In 2014, he arrived at the border and presented false documentation that he was a US citizen. Instead of allowing him to voluntarily depart, the officer issued an expedited removal order via a mechanism provided when someone presents false identification documents when trying to enter the country. Silva was also charged with illegal reentry. After serving a 15-month sentence on that offense, he was removed. He returned and was arrested on state charges in Virginia in 2017 and charged with illegal reentry. Silva moved to dismiss the indictment, arguing that the expedited removal process violated his due process rights. The district court disagreed and Silva entered a conditional plea before being sentenced to 21 months in prison.

On appeal, the Fourth Circuit affirmed Silva’s conviction and sentence. The main issue involved the intersection of two statutory provisions – the illegal reentry statute and the immigration provision that provides for expedited removal. That later provision states that anyone removed that way cannot later challenge the validity of the removal in an illegal reentry prosecution. The court (affirming the district court) found that this was unconstitutional, as it purports to deprive a defendant of a means to challenge an element of the illegal reentry charge. Thus, Silva could move to dismiss the indictment on those grounds. However, that challenge could not be successful here because Silva could not show prejudice related to any denial of due process. Specifically, Silva argued that he could not both remain silent (after being Mirandized by the immigration officer) and request an exemption from the expedited removal proceeding by voluntarily returning to Mexico. The court concluded that given Silva’s lengthy record of illegal entries and the fact that the officer referred him for criminal prosecution there was no reasonable possibility that he would have been granted that relief.