Osuna-Gutierrez v. Johnson, No. 14-9593 (10th Cir. 2016)Annotate this Case
Brayan Alexis Osuna-Gutierrez was arrested in Kansas. He was a passenger in a rental vehicle on a cross-country trip. The police found approximately seven grams of marijuana belonging to Gutierrez that he had legally purchased in Colorado. Police also found approximately three kilograms of methamphetamine in the rear portion of the car. The government charged Gutierrez and his co-defendants with possession with intent to distribute methamphetamine. Gutierrez ultimately pled guilty to “Possession of Marijuana with Intent to Distribute" (the government dropped the methamphetamine charges). The district court sentenced him to time served, approximately seven months. After leaving jail, Gutierrez was immediately transferred to immigration custody and served with Notice of Intent to Issue a Final Administrative Removal Order (the expedited removal process). During the removal process, an officer within DHS concluded that Gutierrez was not a legal permanent resident, having come to the United States from Mexico with his mother when he was one year old without being legally admitted. Further, Gutierrez had pled guilty to an aggravated felony. Gutierrez timely petitioned for review of his removal and was deported back to Mexico. Gutierrez argued his deportation was improper because: (1) the Department of Homeland Security’s (DHS) expedited removal process is illegal; and (2) in any event, it was improper for DHS to use the expedited removal process on Gutierrez because he pled guilty to a misdemeanor, not a felony. The Tenth Circuit found Gutierrez was wrong on both counts, and denied Gutierrez's petition for review.