PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4740

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SAUL QUINTEROS GUZMAN, a/k/a Saul Quinteros-Guzman, a/k/a Saul Quinters Guzman,

Defendant - Appellant.

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LAW PROFESSORS, IMMIGRATION SCHOLARS, AND CLINICIANS,

Amici Supporting Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, Senior District Judge. (3:18-cr-00031-NKM-JCH-1)

Argued: January 26, 2021 Decided: May 25, 2021

Before NIEMEYER, KING, and RUSHING, Circuit Judges.

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

2 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

(b)(1). He was charged with reentry without permission after having been

removed, in violation of

(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”),

(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

(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

3 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

(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.

(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,

4

(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.

(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,

(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

(b)(1)(A)(i), he was not “told he

5 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.

(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,

(4th Cir. 2019) (one emphasis omitted and one added); see also United

States v. Mendoza-Lopez,

, 837–38 (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

6 suffered prejudice as a result of the defects.” United States v. El Shami,

(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

7 effort to obtain counsel. Generally, the INA’s comprehensive provisions are specific,

describing when counsel is available to an alien and when not. For instance, in connection

with removal proceedings before an immigration judge, § 1229a sets forth the procedures

to be followed, including affording the alien “the privilege of being represented, at no

expense to the Government, by counsel,” 8 U.S.C. § 1229a(b)(4)(A), and § 1229 entitles

the alien to be given notice before the removal hearing of that right to retain counsel, id.

§ 1229(a)(1)(E). Moreover, § 1229a provides that the prescribed procedures “shall be the

sole and exclusive procedure” for determining admission and removal, “[u]nless otherwise

specified in [Chapter 12].” Id. § 1229a(a)(3) (emphasis added). The expedited procedure

of § 1225(b)(1) is, of course, such an otherwise specified procedure in Chapter 12, and it

does not provide for the privilege of being represented by counsel.

The expedited removal procedure was enacted in 1996 to address the pending

backlog of cases by “weeding out patently meritless claims and expeditiously removing

the aliens making such claims.” Dep’t of Homeland Sec. v. Thuraissigiam,

(2020). The procedure treats aliens who “arrive[]” in the United States and have not

been admitted as “applicant[s] for admission.”

(a)(1). And if an

immigration officer determines that the alien is “inadmissible” for any of a number of

specified reasons, including that he does not have a valid entry document, the officer must

order the alien removed “without further hearing or review.”

§ 1225(b)(1)(A)(i). This

expedited removal can be avoided, however, if the alien “indicates either an intention to

apply for asylum” or “a fear of persecution.” Id.

8 The procedure for expedited removal that the immigration officer must follow is

brief and efficient. The immigration officer, on encountering the alien, must (1) read the

alien a form asking about the alien’s “identity, alienage, and inadmissibility”; (2) “advise

the alien of the charges against him or her”; (3) give the alien “an opportunity to respond”

to the charges; (4) “obtain[] supervisory concurrence” of the officer’s determination on the

charges; and (5) “serve the alien” with the determination.

(b)(2)(i). The

immigration officer’s order is not subject to “further hearing or review,” unless, as noted,

the alien indicates an intent to seek asylum or a fear of persecution.

(b)(1)(A)(i). This procedure makes no provision for counsel, and this exclusion was

deliberate, as indicated by the contrast between the expedited removal procedure and its

exceptions, including when asylum or fear of persecution is asserted, and then an

opportunity to obtain counsel is prescribed.

§ 1158(d)(4)(A) (requiring the government

to “advise the alien of the privilege of being represented by counsel”). Indeed, this is stated

expressly in the implementing regulation, which provides, “[e]xcept in the case of an alien

subject to the expedited removal provisions . . . , an alien . . . placed in formal proceedings

. . . will be advised of . . . the right to be represented at no expense to the Government.”

(c) (emphasis added).

Guzman recognizes that the INA does not provide for counsel in expedited removal

proceedings, and he acknowledges that the procedure specified by the INA and its

regulations was followed by the immigration officer in his case. Rather, he argues that the

statutorily prescribed procedure was invalid because it failed to include a right to counsel

as protected by the Due Process Clause and afforded by the APA.

9 A

We address first Guzman’s argument under the Due Process Clause, by which he

contends that that Clause is applicable to the INA’s expedited removal procedures. The

Supreme Court, however, has held otherwise when, as here, an alien had not previously

effected an entry into the United States at the time of his removal proceeding.

First, in the broader context, the admission and exclusion of aliens is a sovereign

prerogative that is exercised under the Constitution by the political departments. And

therefore, as the Supreme Court has repeatedly stated, “an alien seeking initial admission

to the United States requests a privilege and has no constitutional rights regarding his

application, for the power to admit or exclude aliens is a sovereign prerogative.” Landon

v. Plasencia,

(1982) (emphasis added) (citing United States ex rel. Knauff

v. Shaughnessy,

(1950), and Nishimura Ekiu v. United States,

, 659–60 (1892)). Accordingly, “[w]hatever the procedure authorized by Congress is,

it is due process as far as an alien denied entry is concerned.” Knauff,

(emphasis added); see also Zadvydas v. Davis,

(2001).

This foundational principle was recently applied by the Court in Thuraissigiam,

where it rejected the Ninth Circuit’s holding “that respondent ‘had a constitutional right to

expedited removal proceedings that conformed to the dictates of due process.’”

(emphasis added) (quoting

, 1111 n.15 (9th Cir. 2019)). In doing

so, the Court stated,

[The Ninth Circuit’s] holding is contrary to more than a century of precedent. In 1892, the Court wrote that as to “foreigners who have never been

10 naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law,” “the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.”

Id. at 1982 (emphasis added) (quoting Nishimura Ekiu,

). The Court

explained further that within Congress’s “plenary authority to decide which aliens to

admit” is the “concomitant . . . power to set the procedures to be followed” in making that

determination.

Thus, while an alien who has already effected an entry into the United

States is entitled to due process, as required by the Constitution, “an alien who tries to enter

the country illegally is treated as an applicant for admission” and therefore does not have

the same status for due process purposes as an alien who has “effected an entry.”

(cleaned up). In Thuraissigiam, where the alien was apprehended just “25 yards into U.S.

territory,” the Court made clear that he remained an applicant for admission who is “treated

for due process purposes as if stopped at the border.”

(cleaned up) (quoting

Shaughnessy v. United States ex rel. Mezei,

(1953)). And “an alien at

the threshold of initial entry cannot claim any greater rights under the Due Process Clause”

than those allowed by Congress. Id. at 1964.

In this case, Guzman had never effected an entry into the United States at the time

he was placed in his expedited removal proceeding. When he was apprehended at the

border, he was merely an applicant for admission, for whom the INA’s admission

procedures was the due process. The immigration officers followed those procedures fully

— which Guzman does not challenge — ultimately issuing Guzman an order of removal.

In these circumstances, Guzman cannot now claim that the Constitution’s Due Process

11 Clause required more than was provided by Congress in the INA. Accordingly, we reject

his claim that the removal order was invalid under the Due Process Clause on the ground

that the procedure followed by the immigration officer did not include giving Guzman the

opportunity to obtain counsel.

Guzman argues, however, that Thuraissigiam “does not apply in criminal cases

under 8 U.S.C. § 1326” because the consequences of a conviction entitle him to greater

protections than an alien facing only deportation. (Citing United States v. Guzman-

Hernandez,

, 990–92 (E.D. Wash. 2020)). But this argument blurs the

issues. Without question, Guzman enjoys full constitutional protections with respect to his

criminal prosecution, including a right to appointed counsel. See Agency for Int’l Dev. v.

All. for Open Soc’y Int’l, Inc.,

(2020). The holding in Thuraissigiam

does not purport to diminish those rights. What is at issue within his criminal prosecution

is whether an element of his criminal offense — a prior removal order — cannot be

established because during the prior removal he did not have counsel. On that issue and

with the support of Thuraissigiam, we hold that the Due Process Clause did not entitle

Guzman to counsel when apprehended at the border and promptly removed.

B

Guzman also argues that the APA grants him the right to counsel in expedited

removal proceedings conducted under the INA. The APA — in

(b) —

provides that “[a] person compelled to appear in person before an agency or representative

thereof is entitled to be accompanied, represented, and advised by counsel.” But Guzman’s

12 argument for the application of the APA fares no better than his due process argument.

While the APA did indeed serve as a model for the INA, see Marcello v. Bonds,

, 308–09 (1955), the INA “supplant[ed]” the APA for purposes of immigration

proceedings, Ardestani v. INS,

(1991). And the two acts were not

intended to function in an interlaced fashion such that the APA applies to matters not

specifically addressed by the INA. This was explained by the Supreme Court in both

Marcello and Ardestani.

In Marcello, the alien was ordered deported for violating a tax law.

.

In challenging his deportation proceedings, he alleged that they violated the Due Process

Clause and the APA in multiple respects.

. As most relevant here, he argued that

whenever the INA procedure was at variance with the APA, the APA provisions governed

unless the INA “‘expressly’ negate[d] their application.”

at 305 (quoting

). The Supreme Court rejected the argument, noting that the INA, while modeled

after the APA, displaced the APA as a “specialized administrative procedure.”

.

The Court reasoned that “when in this very particularized adaptation there was a departure

from the [APA] — based on novel features in the deportation process — surely it was the

intention of the Congress to have the deviation apply and not the general model,” i.e., the

APA.

. The Court concluded that the INA procedures were intended to be

“exclusive,”

at 309–10, pointing to statutory language in the INA that “[t]he procedure

[therein prescribed] shall be the sole and exclusive procedure for determining the

deportability of an alien under this section,” as well as legislative comments, including the

House Report’s statement that “the prescribed deportation proceedings shall be the sole

13 and exclusive procedure, notwithstanding the provisions of any other law,”

(cleaned

up).

Later, in Ardestani, the alien successfully avoided deportation and then sought

attorneys fees and costs under the Equal Access to Justice Act,

, which

applies to “adversary adjudication[s]” “under [5 U.S.C.] § 554,” a provision of the APA.

502 U.S. at 132–33. In rejecting the alien’s claim, the Supreme Court held that her

“deportation proceeding was not subject to the APA and thus not governed by the

provisions of § 554.” Id. at 134. And in reaching that conclusion, the Court relied

extensively on its earlier decision in Marcello. The Court explained — as plainly relevant

here — that “Marcello does not hold simply that deportation proceedings are subject to the

APA except for specific deviations sanctioned by the INA.” Id. at 134. Rather, the Court

understood Marcello to be holding “that Congress intended the provisions of the

Immigration and Nationality Act of 1952 (INA) to supplant the APA in immigration

proceedings.” Id. at 133 (emphasis added) (citation omitted).

To be sure, the discussion in both Marcello and Ardestani related to the INA

deportation procedures when a hearing before an immigration judge was the only

prescribed method, as the expedited removal procedure was not enacted until 1996. But

once enacted by Congress, the expedited removal procedure became no less a part and

parcel of the specialized administrative procedure applicable to deportation proceedings.

The INA is a self-contained, comprehensive, and reticulated administrative process that

displaced wholesale the provisions of the APA that had theretofore been applicable. Cf.

Great-West Life & Annuity Ins. Co. v. Knudson,

(2002) (referring to

14 ERISA as a “comprehensive and reticulated statute”). We thus reject Guzman’s argument

that the APA requires — as an additional procedural right in removal proceedings — that

the alien have the opportunity to obtain counsel in expedited removal proceedings under

§ 1225(b)(1)(A)(i).

Guzman nonetheless seeks to distinguish Marcello and Ardestani on the ground that

they held only that the APA’s hearing procedures were inapplicable to the INA, saying

nothing about the APA’s non-hearing provisions, including § 555(b)’s counsel provision.

But surely, a right to counsel is part of the hearing procedure and therefore would not be a

“non-hearing” provision. More importantly, however, this argument fails to account for

the larger context of the INA, Congress’s purpose in establishing a specialized

administrative procedure, and the Supreme Court’s observations about the relationship

between the APA and the INA. The Court emphasized that the APA served “only as a

model” for the INA, and that the INA, not the APA, would apply to deportations “based

on novel features in the deportation process.” Marcello,

(emphasis added).

It recited legislative history to reveal Congress’s intent to have the INA deportation process

be the exclusive procedure, “notwithstanding any other law, including the [APA].”

at

309–10 (cleaned up). And were these observations in Marcello not sufficiently clear to

indicate that the INA displaced the APA when it came to deportation proceedings, the

Court in Ardestani left little doubt, stating, “In Marcello, we held that Congress intended

the provisions of the [INA] to supplant the APA in immigration proceedings.” Ardestani,

(emphasis added) (cleaned up).

15 Given the comprehensiveness and detail of the INA, which pays careful attention to

the numerous types of circumstances for the admission and removal of aliens and provides

specific procedures for addressing each circumstance, we must reach the same conclusion

here as reached by the Supreme Court in Marcello and Ardestani. The fact that the

expedited removal procedure in particular had not yet been included in the various

deportation procedures of the INA when Marcello and Ardestani were decided is an

unavailing argument, unless one sees the INA and APA functioning as an interlaced

patchwork. Yet, one can hardly expect that in applying INA procedures to the admission

and removal of aliens, Congress intended that the courts and counsel must lay the APA and

the INA side by side and determine which of two similar provisions applies to immigration

proceedings. That is precisely the approach that both Ardestani and Marcello rejected.

Moreover, it would, with respect to this case, violate the intent of Congress in tailoring an

abbreviated, expedited removal process for well defined circumstances.

* * *

For the reasons given, we reject Guzman’s claim that his 2016 expedited removal

order was “fundamentally unfair” for lack of representation by counsel during the removal

proceeding, as guaranteed by the Due Process Clause and afforded by the APA, and

therefore was invalid. Accordingly, the judgment of the district court is

AFFIRMED.

16