United States v. Silva, No. 18-4652 (4th Cir. 2019)Annotate this Case
The Fourth Circuit affirmed the district court's denial of defendant's motion to dismiss the indictment. Defendant had pleaded guilty to illegally being in the United States after having been removed after a felony conviction. The district court held that defendant failed to establish that the removal was fundamentally unfair and denied his motion to dismiss.
The court held that 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 if he did not have a prior opportunity to do so. Because the rules attendant to expedited removal preclude review of the removal order, the defendant in a 8 U.S.C. 1326 prosecution premised on an expedited removal order under 8 U.S.C. 1225(b)(1)(A)(i) must be given the opportunity in the section 1326 prosecution to challenge the validity of that order. Because section 1225(b)(1)(D) strips courts in section 1326 prosecutions from hearing a defendant's challenge to an expedited removal element, the court held that this jurisdiction-stripping provision is unconstitutional.
On the merits, the court held that defendant did not sufficiently demonstrate a reasonable probability that the Attorney General would have allowed him to withdraw his application for admission under section 1225(a)(4), and thus he failed to show prejudice, as required to demonstrate that his removal was fundamentally unfair.