Removal at Border Just After Crossing Did Not Require Due Process

US v. Guzman: Guzman crossed the Rio Grande and entered the United States in 2016, but was shortly apprehended. He did not seek asylum and “stated that he would return to El Salvador.” As a result, he was issued an order of removal under an expedited procedure and was removed from the United States. A couple of years later, he was arrested following a traffic accident in Virginia and was charged with illegal reentry. He filed a motion to dismiss, arguing that his removal order was not valid because it was obtained in violation of due process. The district court disagreed, denied the motion, and imposed a sentence of probation after Guzman’s guilty plea.

On appeal, the Fourth Circuit affirmed Guzman’s conviction. Although it wasn’t completely clear, the court construed Guzman’s argument as being that his removal order was invalid because the expedited procedure used “failed to provide him with the opportunity to obtain counsel during the interview with the immigration officers who issued the expedited removal order” and “denied him the right to counsel” under the Due Process Clause and the Administrative Procedures Act. This prevented Guzman from agreeing to voluntary removal, which does not count as a “removal order” for illegal reentry purposes. The court held that no right to counsel existed in such expedited proceedings. As to due process, the court held that because Guzman was never “admitted” to the United States then he had only the due process protections Congress had set forth, which do not include a right to counsel. That attaches in immigration proceedings only after someone has been “admitted.” As to the APA, the court held that although the Immigration and Nationality Act was originally related to the APA, it was a standalone statutory scheme and the right to counsel from the APA could not be imported into it.