access counsel and his removal proceedings in addition he was prejudiced by that denial because it's had a that's a very broad statement we ought to break it up a little bit there's one issue is to whether at the borders  to the st question that you know that you raised the bar or the the due process and the border i think it's important to understand that mr guzman's expedited removal is subject to challenge here because it's being used as the basis for a criminal offense i don't eat we held that we held that a while back in other words we concluded it was not unconstitutional at the border because as part of the sovereign sovereign privilege of the country to do that at the borders we search people at the borders we deny them entry we discriminate against them we do everything we at the borders but if that exclusion is becomes an element  a later can prosecution then we give you the right to challenge it is unfair but that doesn't necessarily mean to challenge it under the due process cost question is whether the due process that was allowed by the  so in that case the court never actually reached the question of the fundamental fairness the due process aspect of the fundamental fairness question because it determined that  couldn't show prejudice so it never and never fully addressed the claim he raised which also involves the right to access to counsel at the border the court did recognize that he was entitled to judicial review u nlike the supreme court and the rossignol which noted that in the context of an immigration proceeding an alien would not have a judicial review right because as as the court understands because marion illegal reentry proceedings aliens do have different rights and but we don't when we when we treat the consider the formal we mobile expedited removal as part of a criminal case we don't impose new requirements on the removal we determine we give you the right to challenge removal as being unfair meaning that the process wasn't filed or he didn't get a chance to have an explanation or or he had papers and the officer said he didn't have papers but if you basically have somebody walking up to the gate of the united states without papers and that and the gatekeeper says you can't come in we don't provide a lawyer at that point we just say no close the door and you don't come in that's that's really expedited removal is or fraud and so the question is whether that process was unfair now the leads to your nd question too though is whether it was deliberate of congress not to provide for counsel on that proceeding and it's a little strange that somebody comes to the door you don't let him into the united states because he doesn't have any travel papers and then he says i want an attorney and of course you close the door so you can get attorney while you're in the how many times have we had people come in to new york on an airplane with no trouble papers we've seen several cases like that i don't know how they get on the plane but they do your honor i think the difference is that expedited removal is actually much broader than simply aliens who show up at the border and and ask for entry under bridges i doubt that limit i mean you know there's regulations that extend it but the statute  basically has someone who comes in with a false papers or no papers fraudulent papers or no papers and there's regulations that extend the time and place and so forth but here the man was clearly at the border within twenty correct eleven point at the beginning which is that the statute actually provides for incredibly broad expedited removal so what section one thousand two hundred and twenty five provides is that aliens who who have not been and who have not been inspected who have not been and who've crossed the border illegally are deemed for the purposes of immigration to not be admitted and so we it's a legal fiction that these people are still at the border for purposes of immigration law it is a practical matter they're in the country and the statute applies to anyone who is not it needed in terms of legal fiction who can show continuous legal presence for at border in two thousand for it was broadens to include aliens within a one hundred miles of the border and fourteen days of entry in two thousand and nineteen when they got on challenging the breadth of that you're challenging a man who's within twenty five miles as st engagement in the united states is to meet an officer who demands papers and doesn't get any and it seems to me if you're challenging the constitutionality of the whole provision i don't think you did so but if you are that's another issue but here we have a man that falls within the very traditional notion he's at the gate and he's denied entry because he has no papers and his kids does not specify exactly where he was i believe there are some coordinates in that but we never went into the record he was there's no indication that he was like m because the court and the government agreed in lopez grasso that that case complied with the minimum with with the with with due process and in that case he was the procedures for for or due process right of what were they could see there that's a statutory right but the court said that that complied with the requirements of due process there's no reason why the for the why the line should be drawn for differently for elin's and and administrative removal than it should be for allianz an expedited removal both are streamlined limited procedures that don't provide a hearing but the requirements of due process lo expedited removal for allianz who haven't been admitted who are who are and in this case who are who are close to the border or who have been otherwise and admitted administrative removal as the other kind and it's for early ends who've been of an aggravated felony and i want to ministre to remove does a statute provide for an attorney and does and does provide for an attorney here the statute of silence does not specifically provide for an attorney and does not say that there is no right to an attorney the regulations however take the position that there is no right to an attorney given given that our position is also that under the administrative procedure act  removal proceedings where they're detained find attorneys they're provided with a notice that gives them tells them that they have the right to an attorney and they're provided with a list of local attorneys who handle pro bono cases and that's really all that we're asking the should have happened in this case it takes approximately what i was trying to double what you really were asking for and i guess yes it takes approximately took him two weeks to be removed during which time he was detained attorney or at least to seek an attorney and get some legal advice if they are if they at the end will not prejudice the government's timeline substantially in fact this is normal procedure even in the streamlined  violation and that he was prejudiced as a result of it here i'd like to start st maybe on the prejudice issue and then go into the due process violation for many reasons one we don't really talk about it was a really discussed in the opening argument but also because many courts tend to skip right to that argument or that element because it is so dispositive here and if i may continue going to the st point him he's not saying that he wants to be notified of the ability to withdraw his application or to be able to voluntarily to parse what he is saying is that he was actually prejudiced which is the burden that he has to prove actual prejudice that if it wasn't for that notice of a right to counsel he would have eventually actually been voluntarily departed and he didn't he wouldn't have a removal here and it's his burden to show that and connect the dots all the way through and he has to start from the beginning here which is going to judge king's point which is that after he steps off the river and he's in texas encountered by puerto patrol  you had been notified of his right to some sort of counsel he would have actually gotten counsel and our record does not have any information whether you actually wanted counsel at that time or whether he could afford one i believe i'm j thirty five dollars part of the a file shows that he had fifteen dollars on hand that immigration officials found so yes to prove and connect actual prejudice voluntarily depart he would have asked for it which again we don't know whether he was even interested a guy at this point because he wanted to come to the united states to work which is in the record and then looking at the activities that the immigration official would have looked at in the immigration officials discretion that immigration official had a lot of him to voluntarily depart instead of have that removal there just simply too many steps to connect the dots between each of those and it's purely speculative at this point based on our record that he was even interested in counsel and this is very similar to a case recently united states versus soulbound where someone was also stopped at the border that individual was actually mirandized because the border officials thought he might have committed a crime by having false identification that individual a no prejudice and that even in that case where somebody was even interested in counsel because there is nothing connecting the dots between having counsel and then actually being able to voluntarily took part so based if there are no other questions on the prejudiced issue then i'll move on to the nd point which is about due process and the constitution from the government's perspective the st question i think that has to be answered  a collateral attack they can't just be cut come from procedural errors that occurred in the immigration proceeding it has to be of a constitutional significance so the question then is what is the constitutional due process rights that is given to somebody and mister position and that's where birds are john the supreme court case comes and play because that answers the dops it's also an opinion that's often cited and it has a quote about how aliens are given due process no matter how temporary they're here in this country but that quote which i know not been admitted and then so we just have an extension of that and the results and to say that somebody just steps off the river is still not admitted into our country and he has she or she does not have due process constitutional these are all cities that are squarely on the border and within the sector of the rio grande valley for border patrol and that's where he was apprehended and countered what happened the next day according to the record is that when he was interviewed at nick allen so that's the difference is that he wasn't he didn't have his administrative interview until the next day but he was apprehended thirty minutes after he crossed the border so based on that it's important to know that they still needs to show a reasonable probability that the outcome would have been different so he does not need to show as a matter of certainty that he would have been granted withdrawal of application for admission but  of all and he was gracious there evidence in the record that he would have even requested it in other words when confronted with the question should your entitle to request withdraw or you don't have to request withdraw and try to get your way into the united states is there any evidence to suggest what he would of how he would have answered that there isn't your honor because the question was never presented to him i think where i know th the told him look if you want to work in this country you have a college education you have you have positive equities in your favor one you should be eligible for withdrawal and here's what you should say to the to the immigration officer and to you might have you might be able to get a and h one b visa or you may be able to find other ways to work in this country and so you there is there is a benefit to you to asking for withdrawal you should just stick with your oh you shouldn't stay and fight us left so i think it's entirely reasonable to believe that he would have taken withdrawal if he had known that it was available to an attorney certainly would have been able to provide him this information so even though it's not it's  up to certainly make it make it something that would be valuable to him and he does need to the criteria for it under the inspectors field manual unlike the defendant in sylva he doesn't have a lengthy criminal history or a history of presenting false documents which were some of the factors that this court looked at in silva and recognising why that alien would never have been granted withdrawal in the st place no as to the due process question the government raises this court has long recognized that aliens in and one thousand three hundred and twenty six proceedings who is removal is used to as the basis for their criminal liability context of a criminal we recognize that sopa to i mean one when the when the criminal prosecution looms every criminal prosecution has been ducted in accordance with our constitution and so exactly and  we get all the life there so so where that's where in the exact same place the because the government's argument if it were the government essentially argues that he had no due process rights even now for the expedited removal yes he has the process rights when he is convicted of a crime or charged with a crime or threatened with the charge of a crime in other words when he comes back n all of a sudden due process rights kick in because now he's committed a crime but annan soba there was a fraud claim and the in the officer said because he comes back so many times the officer said we're not going to prosecute you at that point he was given miranda warnings and so all the due process kicks in but just on expedited removal i don't hold any case of holes that due process applies there well the thing is your honor i think we need to look at it from the perspective of an alien who is facing criminal liability now and i would point the current to judge monson's concurrence in united states versus wilson where she recognized that of course aliens and and in these proceedings do have a impose a criminal penalty for reality after any deportation regardless of how violent it will the rights of the alien the deportation proceeding maybe the statute does not comport with the constitutional requirements of due process and i think i think that's why you're here and making such a good argument because we're giving the man due process on the criminal prosecution i don't think there's any issue i don't think the government's asserting that either the question is in this criminal prosecution where we're now pursuing due process we are exploring one of the elements which was a reprisal or removal and your argument is the prior removal has been challenged as an element because it was fundamentally unfair and  the unfair because he was not notified about counsel and the prior removal but it's very clear that in this prosecution he's entitled to the four ray of due process and i hope i hope removal that is entirely bare of any process can be used as the basis for criminal liability then it really doesn't it doesn't do it doesn't comply with one hundred and thirty two thousand and sixty or mendoza lupin's requirements  session the fairness and of course when you go back to assess the fairness of the expedited you have to ask the question the two questions was he denied due process and of course supreme court says due process is what congress authorizes at the border and the nd is whether he was prejudiced by that any denial and so those are the two prongs i think you have to have to up a stablish yes your honor and with respect to the to the due process and so not statutory compliance which i think is incorrect under under the court's president as you note but second with respect to the to the process that he's due i think you see here he is in here because he is subject to criminal liability and because that that doesn't have the process at the time we came in he wasn't subject to criminal process no he wasn't but you know and they may be helpful to think to analogize due process if i may to to something else for that we can tap another way to think about this so if you think of due process and something like a piece of personal a protective equipment like a helmet it's perfectly appropriate to if you're writing a bicycle to only wear a bicycle helmet but if someone's going to put you on a motorcycle you need to have more substantial protection you need a motorcycle helmet so if here he is he has only been given a bicycle helmet but he's been put on a motorcycle he's been put into criminal proceedings the the requirements i think and that this court has recognized and in certainly smith versus ashcroft that the requirements of due process for immigration purposes and the requirements of due process for criminal purposes when when alien is being subject to expedite a two to criminal liability based on the ruble are different that's what that's why the the court recognized that mendoza lopez did not apply incentives versus ashcroft and that's why in addition the rasa him comes out differently than mendoza lopez itself or other cases where the courts have recognized th is very important of course to the parties it's our tradition as you know in the th circuit to come off the bench and come down in the well of the court and read counsel and we would love to do that today but of course we can't but and know both you'll be back and will greet you at the time but in the meantime many thanks for your fine arguments and we'll address in court for the day thank you very much thank you