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United States v. Gonzalez-Fierro, 949 F.3d 512 (10th Cir. Feb. 4, 2020)

Feb 4, 2020

As a matter of first impression, the Tenth Circuit held that 8 U.S.C. § 12225(b)(1)(D) unconstitutionally deprives a defendant who had a previous expedited removal under 8 U.S.C. § 1225(b)(1) and is charged with unlawful reentry under 8 U.S.C. § 1326(a) of due process because it allows the government to use that unreviewed expedited removal order to convict the defendant of the § 1326(a) criminal offense.  In doing so, the court relied on the Supreme Court’s decision in United States v. Mendoza-Lopez, 481 U.S. 828 (1987), which, although involving different circumstances, “applies here with equal force.”