FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              Nos. 14-50393
            Plaintiff-Appellee,             14-50394

              v.                           D.C. No.
                                     3:12-cr-03370-LAB-1
RUFINO PERALTA-SANCHEZ,
         Defendant-Appellant.
                                            OPINION


      Appeal from the United States District Court
        for the Southern District of California
       Larry A. Burns, District Judge, Presiding

          Argued and Submitted May 4, 2016
                Pasadena, California

                   Filed February 7, 2017

        Before: Harry Pregerson, Jay S. Bybee,
         and N. Randy Smith, Circuit Judges.

               Opinion by Judge Bybee;
              Dissent by Judge Pregerson
2            UNITED STATES V. PERALTA-SANCHEZ

                            SUMMARY*


                           Criminal Law

    The panel affirmed a conviction and sentence for illegal
entry, and the revocation of supervised release, in a case in
which the defendant argued that his expedited removal was
fundamentally unfair, and cannot serve as the basis of the
illegal reentry count, because he was neither entitled to hire
counsel nor advised of his right to apply for withdrawal of his
application for admission.

    The panel held that the defendant had no Fifth
Amendment due process right to hire counsel in the expedited
removal proceeding under 8 U.S.C. § 1225, and that he
cannot demonstrate prejudice from the failure to notify him
of the right to withdraw his application for admission under
8 U.S.C. § 1225(a)(4). As a result, the panel concluded that
the defendant’s 2012 expedited removal could be used as a
predicate for his illegal reentry conviction, and affirmed the
denial of the defendant’s motion to dismiss the indictment
and the subsequent judgment and sentence as well as the
revocation of his supervised release.

   Dissenting, Judge Pregerson would hold that there is a
due process right to counsel during expedited removal
proceedings.




    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
            UNITED STATES V. PERALTA-SANCHEZ                          3

                            COUNSEL

Kara Hartzler (argued), San Diego, California, for Defendant-
Appellant.

Michelle L. Wasserman (argued), San Diego, California, for
Plaintiff-Appellee.


                             OPINION

BYBEE, Circuit Judge:

    Rufino Peralta-Sanchez (Peralta) was convicted of illegal
entry in violation of 8 U.S.C. § 1325 and illegal reentry in
violation of 8 U.S.C. § 1326. The predicate for his illegal
reentry count was his expedited removal in 2012. Peralta
argues that his expedited removal was fundamentally unfair
and thus cannot serve as the basis of the illegal reentry count,
because he was neither entitled to hire counsel nor advised of
his right to apply for withdrawal of his application for
admission. We find that Peralta had no Fifth Amendment due
process right to hire counsel1 in the expedited removal
proceeding and that he was not prejudiced by the
government’s failure to inform him of the possibility of
withdrawal relief. Concluding that his 2012 expedited
removal was not fundamentally unfair, we affirm his § 1326
conviction and sentence for illegal reentry. Because the
revocation of his supervised release was premised on the



    1
       When we refer to the “right to counsel” in this case, we mean the
right of an alien to hire counsel at no expense to the government. We do
not refer to a right to government-appointed counsel.
4          UNITED STATES V. PERALTA-SANCHEZ

§ 1326 conviction, we affirm the district court’s revocation as
well.

             I. FACTS AND PROCEEDINGS

A. The Facts

    On March 7, 2014, at approximately 11:20 p.m., video
surveillance along the U.S.-Mexico border spotted two
individuals hiding in the brush about one mile north of the
border. U.S. Border Patrol agents spent four to five hours
tracking fresh footprints, which ultimately led the agents to
Rufino Peralta-Sanchez and his companion, who were by that
time approximately six miles from the border. A Border
Patrol agent conducted a field interview, during which Peralta
admitted to being a Mexican citizen without documents
permitting him to enter or remain in the United States. The
agents gave Peralta a Miranda warning, and Peralta agreed to
talk and to waive his right to counsel. In a post-arrest
interview, he stated that he was a citizen of Mexico; had no
documents allowing him to enter or remain in the United
States; had entered the United States illegally on March 7,
2014; had been previously deported from the United States;
and had crossed the border from Mexico in order to travel to
Fresno, California. Peralta was eventually charged with one
count of improper entry by an alien, 8 U.S.C. § 1325, and one
count of being a removed alien found in the United States, 8
U.S.C. § 1326. At the time of his arrest, he was still on
supervised release for his most recent felony conviction for
reentering the United States illegally.

    Peralta first entered the United States in 1979 at the age
of twenty. He obtained legal status in 1986 and became a
lawful permanent resident (LPR) in December 1990.
           UNITED STATES V. PERALTA-SANCHEZ                  5

Between 1990 and 2000, he maintained a relationship with a
woman with whom he has three U.S. citizen children.
Peralta’s criminal history, including a history of immigration
offenses, is extensive. In 1982, Peralta was arrested in
Bakersfield, California, under the name Gabriel Sanchez for
arson, although these charges were eventually dismissed. He
was arrested in 1983 under the same name, again for arson.
In 1990, he was arrested in Fresno under the name Rufino
Peralta-Sanchez for giving a false identification to a peace
officer. Between 1990 and 1996, Peralta collected a string of
driving under the influence (DUI) convictions: five
misdemeanor convictions and a 1996 felony DUI conviction
for which he was sentenced to 16 months in prison. As a
result of the 1996 felony DUI conviction, the then-
Immigration and Naturalization Service (INS) issued Peralta
a Notice to Appear, charging him as removable for having
been convicted of an aggravated felony “crime of violence.”
Peralta was ordered removed on June 7, 1999.

    Peralta returned regularly to the United States. In January
2000, he was again convicted of felony DUI, as well as
possession of cocaine, for which he was sentenced to 28
months in prison. Following this conviction, Peralta was
convicted of misdemeanor illegal reentry. After serving his
sentence, Peralta’s 1999 removal order was reinstated in
December 2001, and he was again removed from the United
States. Undeterred, Peralta entered the United States again
and was convicted of felony reentry in October 2002, for
which he received 30 months in prison. After serving this
sentence, his 1999 order of removal was again reinstated in
July 2004, and he was again removed from the United States.
After another illegal reentry, the 1999 deportation order was
again reinstated on May 23, 2012, and Peralta was again
removed. Three days later, Peralta was again apprehended by
6            UNITED STATES V. PERALTA-SANCHEZ

Border Patrol agents one mile north of the border, hiding in
the brush with two others.2 He immediately admitted to being
a Mexican citizen with no legal documents to enter the United
States and, in a post-arrest interview, admitted that he had
entered the United States by walking through the desert with
the intent to travel to Los Angeles to find work. On July 17,
2012, Peralta was charged with and convicted of
misdemeanor illegal reentry and sentenced to time served.
He was ordered removed via expedited removal proceeding
and removed on July 18. On July 22, Peralta returned again,
was arrested, and in November 2012, was convicted of felony
illegal reentry and sentenced to 21 months in prison. He was
removed on January 30, 2014, and returned on March 7,
2014, bringing us back to this case, which arises out of
Peralta’s arrest on March 8, 2014.3

B. The Proceedings

    As a result of his March 2014 arrest, Peralta was charged
with improper entry into the United States under 8 U.S.C.
§ 1325 (count one) and with being a removed alien found in
the United States in violation of 8 U.S.C. § 1326 (count two).
Peralta moved to dismiss count two, arguing that his
underlying 1999 and 2012 removal orders violated due
process. Peralta argued that his original 1999 removal was
invalid because felony DUI is no longer considered a crime


    2
     This incident is not to be confused with the March 2014 incident,
which is the subject of this case and which follows a very similar pattern.
    3
      In sum, from what we can tell from the record, Peralta has at least
eight felony arrests (1982, 1983, 1990, 1996, 2000, 2002 (2), and 2014)
and five misdemeanor DUI convictions, and he has been removed from
the United States at least four times (1999, 2001, 2004, and 2012).
            UNITED STATES V. PERALTA-SANCHEZ                          7

of violence.4 He also argued that his July 2012 expedited
removal was invalid because he was deprived of his
purported due process rights to counsel in an expedited
removal proceeding and to be informed of his right to seek
withdrawal of his application for admission to the United
States.

    The district court initially rejected Peralta’s argument
regarding his 1999 removal and denied the motion to dismiss
count two of the indictment. It found that Peralta had
suffered no due process violation, and that if he had, he
suffered no prejudice because he did not qualify for any
discretionary relief. Peralta was convicted on both counts of
the indictment following a bench trial. He then filed a motion
to reconsider the dismissal of count two. The district court
denied the motion. However, in light of our then-recent
decision in United States v. Aguilera-Rios, 

(9th Cir. 2014), as amended, 

, in which we held
that intervening higher authority should be retroactively
applied in determining whether an alien was deportable as
charged, the district court concluded that Aguilera-Rios called
into question the validity of the 1999 removal order.
Nevertheless, the district court denied the motion to dismiss
because Peralta’s 2012 expedited removal was valid. Peralta
was sentenced to 24 months in prison on the § 1325 charge
and 30 months in prison on the § 1326 charge, to run
concurrently. He was also sentenced to 10 months in prison,



    4
      At the time, the Board of Immigration Appeals (BIA) considered
felony DUI a “crime of violence” requiring an alien’s removal under
8 U.S.C. § 1101(a)(43)(F). Felony DUI is no longer considered an
aggravated felony crime of violence. See Leocal v. Ashcroft, 

(2004); United States v. Trinidad-Aquino, 

(9th Cir. 2001).
8           UNITED STATES V. PERALTA-SANCHEZ

to run consecutively, for violating the conditions of his
supervised release from his November 2012 conviction.

    On appeal, Peralta challenges the validity of both the
1999 and 2012 removal orders. We examine only the 2012
expedited removal, as this was the removal order on which
the district court ultimately relied in sustaining Peralta’s
§ 1326 conviction. We have jurisdiction under 18 U.S.C.
§ 3231.

        II. STATUTORY AND CONSTITUTIONAL
                   FRAMEWORK

A. Expedited Removal and Illegal Reentry

    1. Expedited Removal

    Expedited removal proceedings under 8 U.S.C. § 1225 are
limited to aliens arriving in the United States, “whether or not
at a designated port of arrival”; and aliens “who ha[ve] not
been admitted or paroled into the United States” and cannot
show that they have been continuously present in the United
States for two years “immediately prior to the date of
determination of inadmissibility.” 8 U.S.C. § 1225(a)(1),
(b)(1)(A)(iii)(II); 8 C.F.R. § 235.3(b)(1)(ii).5 Section 1225
gives the Secretary of Homeland Security6 “sole and

    5
      Expedited removal proceedings under § 1225 are not to be confused
with expedited removal proceedings under § 1228, which deals with the
removal of aggravated felons.
    6
     Section 1225 provides that the discretion rests with the Attorney
General. The Homeland Security Act of 2002 designated the Secretary of
Homeland Security in place of the Attorney General. 6 U.S.C. §§ 251(2),
252(a)(3), 271(b), 552(d), 557; see Clark v. Martinez, 

, 374
            UNITED STATES V. PERALTA-SANCHEZ                          9

unreviewable discretion” to designate which, if any, aliens
described in the latter category—those arriving in the United
States who have not been admitted or paroled into the United
States and have not been continuously present for the last two
years—will be subject to expedited removal. 8 U.S.C.
§ 1225(b)(1)(A)(iii)(I). By order, the Secretary of Homeland
Security has determined to use the expedited removal
procedure for those aliens (1) “who are physically present in
the U.S. without having been admitted or paroled,” (2) who
are found “within 100 air miles of the U.S. international land
border,” and (3) who cannot establish that they have been
physically present in the United States for the immediately
preceding fourteen days. Designating Aliens for Expedited
Removal, 69 Fed. Reg. 48877-01, 48880 (Aug. 11, 2004).

    If an immigration officer, after conducting an inspection,
determines that such an alien does not possess valid entry
documents, has presented fraudulent documents, or has made
a false claim of U.S. citizenship, “the officer shall order the
alien removed from the United States without further hearing
or review unless the alien indicates either an intention to
apply for asylum . . . or a fear of persecution.” 8 U.S.C.
§ 1225(b)(1)(A)(i); see also 

(a)(7).
When making a finding of inadmissibility, the officer must
create a record of the facts and statements made by the alien,
read the statement containing these facts to the alien, explain
the charges against the alien, and give the alien a chance to
respond to the charges in a sworn statement. 8 C.F.R.
§ 235.3(b)(2)(i). In short, the alien is provided with notice of
the charges against him or her and given an opportunity to


n.1 (2005) (noting that the immigration authorities previously exercised
by the Attorney General and INS now reside with the Secretary of
Homeland Security).
10         UNITED STATES V. PERALTA-SANCHEZ

respond. In contrast to the statutes governing formal removal
proceedings under § 1229a or the removal of aggravated
felons under § 1228, the statutes and regulations governing
expedited removal proceedings do not provide that the alien
may be represented by counsel.

    Except in a limited category of cases (not applicable
here), an alien who is determined to be inadmissible via
§ 1225 proceedings is not entitled to administrative or judicial
appeal. The Attorney General, however, has discretion to
grant withdrawal of the alien’s application for admission.
8 U.S.C. § 1225(a)(4); see also 

(noting
that an alien who claims to be an LPR, a refugee, or an asylee
may be entitled to appeal). If the Attorney General permits
an alien to withdraw his application for admission, the alien
must “depart immediately from the United States.” 

     2. Illegal Reentry

    Section 1326 punishes an alien who has been “denied
admission, excluded, deported, or removed” and later “enters,
attempts to enter, or is at any time found in, the United
States” without permission. 8 U.S.C. § 1326(a)(1), (2); see
United States v. Barajas-Alvarado, 

, 1079 (9th
Cir. 2011). Although an alien has no right to appeal an
expedited removal order, “[a] defendant charged under
§ 1326 has a due process right ‘to collaterally attack his
removal order because the removal order serves as a predicate
element of his conviction.’” United States v. Raya-Vaca,

, 1201 (9th Cir. 2014) (quoting United States
v. Ubaldo-Figueroa, 

, 1047 (9th Cir. 2004)).
In order to challenge a criminal charge under § 1326, a
defendant must show that:           (1) he has exhausted
             UNITED STATES V. PERALTA-SANCHEZ                         11

administrative remedies for seeking relief from the
underlying order of removal; (2) the deportation proceedings
“improperly deprived” him of the opportunity for judicial
review; and (3) the removal order was “fundamentally
unfair.” 8 U.S.C. § 1326(d); 

–02.7 To show that a removal order was fundamentally
unfair, the defendant must demonstrate that the proceeding
violated his due process rights and that he suffered prejudice
as a result of that violation. 

.

    Where a motion to dismiss a § 1326 charge is based on an
alleged due process violation in the underlying removal
proceeding, we review the denial of the motion to dismiss de
novo. United States v. Camacho-Lopez, 

, 929
(9th Cir. 2006). We review the district court’s findings of
fact for clear error. 

Under the Due Process Clause

    Aliens who “enter” the United States are entitled to some
measure of due process under the Due Process Clauses of the
Fifth and Fourteenth Amendments before the government
acts to deprive them of life, liberty, or property. See
Zadvydas v. Davis, 

, 693 (2001) (“[T]he Due
Process Clause applies to all ‘persons’ within the United
States, including aliens, whether their presence here is lawful,

    7
      We note first that, because § 1225(b) provides for no administrative
or judicial review of an expedited removal order, Peralta had no
administrative remedies to exhaust and has been deprived of judicial
review. The government concedes that Peralta therefore satisfies the first
two requirements for challenging his § 1326 conviction. See 

. We therefore need address only the “fundamentally
unfair” prong, i.e., whether Peralta suffered a due process violation and
was prejudiced as a result.
12           UNITED STATES V. PERALTA-SANCHEZ

unlawful, temporary, or permanent.”); see also Mathews v.
Diaz, 

, 77 (1976). Here, there does not appear to
be any dispute that Peralta effected entry into the United
States prior to his 2012 expedited removal when he crossed
the border free from “official restraint.”8 We will therefore
assume that Peralta is an alien to whom the Due Process
Clause applies.

    We have held that an alien facing deportation faces the
loss of a liberty interest. An alien, like Peralta, has a right to
removal proceedings that conform to the requirements of due
process. See 

& n.6; Flores-
Chavez v. Ashcroft, 

, 1161 (9th Cir. 2004).
However, the fact that aliens are protected by the Due Process
Clause does not mean that “all aliens are entitled to enjoy all
the advantages of citizenship or . . . that all aliens must be
placed in a single homogenous legal classification.”

. “[T]he class of aliens is itself a
heterogenous multitude of persons with a wide-ranging
variety of ties to this country.” 

                                  ***




     8
      In contrast, aliens who attempt to enter at an official port-of-entry
and are detained by immigration officials have not “entered” the United
States, even if they may be physically present in U.S. territory, because
they have not crossed the border “free from official restraint.” This is
sometimes referred to as the “entry fiction.” United States v. Argueta-
Rosales, 

, 1162–68 (9th Cir. 2016) (Bybee, J., dissenting)
(discussing the history of the official restraint doctrine); see also
Shaughnessy v. United States ex rel. Mezei, 

, 213–15 (1953)
(referring to this “legal fiction”); United States v. Parga-Rosas, 

, 1213 (9th Cir. 2001).
           UNITED STATES V. PERALTA-SANCHEZ                 13

   The question we must ask in this case is: To what
process—statutory and constitutional—was Peralta entitled?

                III. PERALTA’S CLAIMS

    Due process requires, at a minimum, notice and an
opportunity to respond. Cleveland Bd. of Educ. v. Loudermill,

, 542 (1985). The regulations governing
expedited removal proceedings require an alien to be given
notice and an opportunity to respond to the charge of
inadmissibility. 8 C.F.R. § 235.3(b)(2)(i). Peralta does not
dispute that the government complied with these regulations.
He argues, however, that because he was caught a mile inside
the U.S. border—as opposed to being arrested at an official
port of entry—he is entitled to more than just notice and an
opportunity to respond. As we have noted previously,
“[a]liens who have entered the country are thus distinct from
aliens at a port of entry, over whom Congress has plenary
power and for whom the process prescribed by Congress
constitutes due process.” 

n.5
(citation omitted). Peralta argues that he suffered two due
process violations: first, that he was not advised of his right
to obtain counsel; and second, that he was not notified that he
might be entitled to withdraw his application for admission to
the United States. We address each argument in turn.

A. Right to Obtain Counsel

    “The right to counsel in immigration proceedings is
rooted in the Due Process Clause . . . .” Biwot v. Gonzales,

, 1098 (9th Cir. 2005). “Although there is no
Sixth Amendment right to counsel in an immigration hearing,
Congress has recognized it among the rights stemming from
the Fifth Amendment guarantee of due process that adhere to
14           UNITED STATES V. PERALTA-SANCHEZ

individuals that are the subject of removal proceedings.”
Tawadrus v. Ashcroft, 

, 1103 (9th Cir. 2004).
We have never addressed, however, whether due process
requires that an alien be offered the opportunity to secure
counsel in the context of an expedited removal under § 1225.9

     There are two questions to be answered on this issue. The
first is whether Peralta had a statutory right to counsel at no
expense to the government. If so, due process may require
that he be notified of that right, as we have held in other cases
in which the applicable statute or regulation provided that the
alien may be represented by counsel. See, e.g., United States
v. Reyes-Bonilla, 

, 1045–46 (9th Cir. 2012)
(finding that an alien was denied due process where he was
not properly advised of his statutory right to counsel in a
§ 1228 proceeding). If Peralta has no statutory right, then the
second question is whether the Due Process Clause of the
Fifth Amendment independently gives Peralta the right to
obtain counsel at no expense to the government.

     1. Statutory right to counsel

   Congress has provided that aliens may be represented by
counsel in certain proceedings. For example, 8 U.S.C. § 1362
provides that “[i]n any removal proceedings before an


     9
       In Barajas-Alvarado, we concluded that Barajas-Alvarado’s “claim
that he was denied his right to counsel is meritless on its face.” Barajas-

. The defendant in that case, though, never
entered the United States. 

argument depends on the
distinction between aliens who have not entered the United States and are
entitled only to whatever process Congress has chosen to provide, see
United States ex rel. Knauff v. Shaughnessy, 

, 544 (1950),
and aliens who have entered the United States and therefore may be
entitled to something more.
           UNITED STATES V. PERALTA-SANCHEZ                  15

immigration judge . . . the person concerned shall have the
privilege of being represented (at no expense to the
Government) by such counsel, authorized to practice in such
proceedings, as he shall choose.” Similarly, § 1228, which
governs expedited removal of aggravated felons, and § 1229a,
which governs formal removal proceedings, provide that an
alien has the right to representation at no expense to the
government. See 8 U.S.C. §§ 1228(b)(4)(B), 1229a(b)(4)(A).
None of these provisions applies to Peralta. “[W]here
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Russello
v. United States, 

, 23 (1983) (alteration in
original) (quoting United States v. Wong Kim Bo, 

, 722 (5th Cir. 1972)). Consistent with this rule of
construction, the federal regulations governing removal
proceedings provide that “[e]xcept in the case of an alien
subject to the expedited removal provisions of section
235(b)(1)(A) of the Act [, located at 8 U.S.C.
§ 1225(b)(1)(A),]” an alien must be provided with notice of
the right to be represented at no expense to the government.
8 C.F.R. § 287.3; see Barajas-

(noting that expedited removal proceedings do not provide a
right to counsel). Peralta will have to look elsewhere for a
statutory right to counsel.

    Peralta argues that he has a general right to be represented
by counsel of his choice under the Administrative Procedure
Act (APA). Section 555 of the APA 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 or, if permitted by the
agency, by other qualified representative” and that “[a] party
16         UNITED STATES V. PERALTA-SANCHEZ

is entitled to appear in person or by or with counsel or other
qualified representative in an agency proceeding.” 5 U.S.C.
§ 555(b). Peralta has not referred us to any law or case
indicating that this provision extends the right to counsel to
immigration proceedings.

    This failure is not surprising because the Supreme Court
has long held that deportation proceedings are not governed
by the APA. See Ardestani v. INS, 

, 133 (1991);
Marcello v. Bonds, 

, 310 (1955). In Wong Yang
Sung v. McGrath, 

, 53 (1950), the Court held that
the APA applied to deportation proceedings conducted under
the Immigration Act of 1917. In Marcello, the Court
revisited its decision in Wong Yang Sung in light of the new
Immigration and Nationality Act of 1952. 

–07. The Marcello Court concluded,
however, that the procedures set up by the Immigration and
Nationality Act (INA) superseded the procedures provided
for by the APA. 

The Court wrote that “it is
clear that Congress was setting up a specialized
administrative procedure applicable to deportation hearings,
drawing liberally on the analogous provisions of the
Administrative Procedure Act and adapting them to the
particular needs of the deportation process.” 

Congress used the APA “only as a model, and when . . . there
was a departure from the Administrative Procedure
Act—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.” 

The Court reaffirmed Marcello in Ardestani, noting that

       Marcello does not hold simply that
       deportation proceedings are subject to the
       APA except for specific deviations sanctioned
          UNITED STATES V. PERALTA-SANCHEZ                17

       by the INA. Rather, Marcello rests in large
       part on the statute’s prescription that the INA
       “shall be the sole and exclusive procedure for
       determining the deportability of an alien
       under this section.”

(emphases in original) (quoting
Immigration and Naturalization Act of 1952 § 242(b)
(codified as amended at 8 U.S.C. § 1229a(a)(3))).

    Peralta points out that the Supreme Court has applied the
APA to the BIA. See, e.g., Judulang v. Holder, 

, 483–84 (2011). But Judulang did nothing more than
apply the “analytic framework” of the judicial review
provisions—the “standard ‘arbitrary [or] capricious’
review”—of § 706 of the APA. See 

n.7 (alteration
in original). This is in no way inconsistent with the Court’s
approach in Marcello and Ardestani. “[Section] 706 of the
APA functions as a default judicial review standard.”
Ninilchik Traditional Council v. United States, 

, 1194 (9th Cir. 2000); see Bowen v. Massachusetts,

, 903–04 (1988); Abbott Labs. v. Gardner,

, 140–41 (1967). There is nothing novel here:
Congress displaced the adjudicatory provisions of the APA
with the INA; by contrast, it left the judicial review
provisions of the APA in place, and the BIA’s actions are
subject to those review provisions.

   We conclude that these proceedings are governed by the
INA, and in this case, 8 U.S.C. § 1225 specifically. Peralta
has no statutory right to obtain counsel in an expedited
proceeding.
18         UNITED STATES V. PERALTA-SANCHEZ

     2. Due process right to counsel

    Because he has no statutory right to obtain counsel in an
expedited proceeding, Peralta asks us to find that he has a
constitutional right to do so. In this context, Peralta is asking
us to find the INA unconstitutional because § 1225 does not
provide an alien a right to counsel and, as we noted in the
prior section in this context, we must presume the omission
is deliberate. Thus, Peralta has a due process right to obtain
counsel only if we are persuaded that Congress was wrong to
omit it from the adjudicative scheme it created. “Judging the
constitutionality of an Act of Congress is properly considered
‘the gravest and most delicate duty that [a court] is called
upon to perform . . . .’” Walters v. Nat’l Ass’n of Radiation
Survivors, 

, 319 (1985) (quoting Rostker v.
Goldberg, 

, 64 (1981)). “[D]eference to
congressional judgment must be afforded even though the
claim is that a statute Congress has enacted effects a denial of
the procedural due process guaranteed by the Fifth
Amendment.” 

This deference is particularly
powerful in the area of immigration and naturalization
because “the power to expel or exclude aliens [is] a
fundamental sovereign attribute exercised by the
Government’s political departments largely immune from
judicial control.” Shaughnessy v. United States ex rel. Mezei,

, 210 (1953); see also Fiallo v. Bell, 

, 792 (1977) (“‘[O]ver no conceivable subject is the
legislative power of Congress more complete than it is over’
the admission of aliens.” (quoting Oceanic Navigation Co. v.
Stranahan, 

, 339 (1909))).

    The constitutional sufficiency of the procedures Congress
provided in expedited removal proceedings under the INA is
determined by application of the balancing test articulated in
           UNITED STATES V. PERALTA-SANCHEZ                 19

Mathews v. Eldridge, 

(1976). Under Mathews,
we analyze existing procedures and additional proposed
procedures based on: (1) the nature of the private interest at
stake; (2) the risk of erroneous deprivation of that interest
through the existing procedures, as well as the value of the
proposed safeguard; and (3) the government’s interest,
including the additional financial or administrative burden the
proposed procedure would impose. 

We note that
“the fundamental fairness of a particular procedure does not
turn on the result obtained in any individual case; rather,
‘procedural due process rules are shaped by the risk of error
inherent in the truth-finding process as applied to the
generality of cases, not the rare exceptions.’” 

(quoting 

).

       a. Nature of the private interest at stake

    The Supreme Court has recognized that deportation
“visits a great hardship on the individual and deprives him of
the right to stay and live and work in this land of freedom.”
Bridges v. Wixon, 

, 154 (1945). We have added
that “[t]he high stakes of a removal proceeding and the maze
of immigration rules and regulations make evident the
necessity of the right to counsel.” 

.
These statements, however, were made in the context of
formal removal proceedings before an immigration judge,
proceedings for aliens who had been present in the United
States for some period of time longer than a few minutes or
hours. We do not appear to have ever specifically considered
the interest at stake for an alien facing expedited removal
under § 1225.

   Unlike other types of removal proceedings, proceedings
under § 1225 apply only to “arriving aliens” and aliens found
20           UNITED STATES V. PERALTA-SANCHEZ

in the United States who have no valid entry documents and
cannot establish that they have been here for at least fourteen
days. See 8 C.F.R. §§ 1.2, 235.3(b)(1); 69 Fed. Reg. at
48880.      These proceedings are essentially exclusion
proceedings, even if they can in some instances be applied to
aliens who may have technically effected entry into the
United States—like Peralta—because the alien crossed the
border at somewhere other than a designated port-of-entry
and did so free of “official restraint.” The provision targets
aliens who have either no residence here or only a limited
residence. Such an alien’s interest in remaining in the United
States is therefore much more limited than that of an alien
already living here who has been placed in formal removal
proceedings and stands to lose, perhaps, formal legal status
here, and certainly the life he or she has created here.10

    Indeed, had Peralta attempted to enter at a designated
port-of-entry, he would have had no interest in remaining in
the United States, and would be entitled to no process but that
which Congress has chosen to give him in § 1225. See

; United States v. Sanchez-
Aguilar, 

, 1112 (9th Cir. 2013); Barajas-

, 1088; Pazcoguin v. Radcliffe,

, 1218 (9th Cir. 2002). We cannot think that
Peralta’s interest—or that of any alien covered by § 1225—is


     10
        The dissent claims that the fact that Peralta had moved to the United
States in 1979 shows that expedited removal proceedings target more than
just people with no or a limited residence in the United States. Dissent at
37–38. But this overlooks the fact that Peralta was first removed from the
United States in 2000 and has not legally resided here since then. And in
his initial removal proceedings, Peralta was afforded the full ambit of due
process protections that he desires here. With this in mind, any ties that
Peralta has to the United States have already been taken into account and
severed.
           UNITED STATES V. PERALTA-SANCHEZ                 21

substantially greater than that of an alien denied admission at
a port-of-entry and placed in the very same expedited
removal proceedings simply because Peralta managed to
evade the Border Patrol until he was several miles inside the
United States. To hold otherwise would create perverse
incentives for aliens attempting to enter the United States to
further circumvent our immigration laws by avoiding
designated ports-of-entry.

   We conclude that an alien subject to expedited removal
proceedings under § 1225 has only a limited interest at stake,
and a much less significant interest than those subject to
removal proceedings under §§ 1228 and 1229a.

       b. Risk of erroneous deprivation

    We likewise conclude that risk of error in the context of
§ 1225 removal proceedings is low, and that enabling an alien

to retain counsel would not improve the accuracy of the
proceedings.     We recognize that expedited removal
proceedings permit no judicial or administrative review,
which we assume would decrease any risk of error. In this
case, however, the class of aliens to which expedited removal
applies is fairly narrow, and the analysis required to
determine whether an alien may be subject to expedited
removal proceedings is straightforward: the immigration
officer need determine only whether an alien has valid
documents to enter or remain in the United States. See 8
U.S.C. § 1225(b)(1). This is a relatively simple exercise. We
note as well that aliens who would otherwise be subject to
expedited removal, but who seek asylum or who claim a fear
of persecution, or claim to have LPR status, are entitled to
further process under § 1225 before removal proceedings can
22           UNITED STATES V. PERALTA-SANCHEZ

take place. 

8 C.F.R. § 1235.3(b)(4),
(5). Peralta points to no evidence suggesting that aliens are
being wrongfully removed via expedited removal proceedings
because of a lack of additional process, including a right to
counsel.11

    It is therefore unclear what added value counsel could
provide in expedited removal proceedings. In contrast,
formal removal proceedings, as we have already noted, are
very much akin to a trial, involving various different stages
and potentially complex procedural matters in which the
assistance of counsel could be invaluable in helping an alien
navigate the process. Expedited removal proceedings, by
design, involve none of these complications, and the principal
inquiry is a simple factual one. We are concerned that
requiring more process would fundamentally alter Congress’s
scheme without adding any significant protection for aliens
in expedited removal proceedings.


     11
        The dissent, nonetheless, went beyond the record and found a study
indicating that protection for those who seek asylum or claim fear of
persecution are sometimes erroneously denied. Dissent at 39 n.14, 40.
These risks were not raised by any party below, were not briefed, and
were not mentioned at oral argument. We are unwilling to credit a twelve-
year-old study without the benefits of our adversarial system to challenge
its validity, methodology, or significance to the case at hand.

     The dissent also raises the possibility that some individuals may be
incompetent due to mental illness or disability. Dissent at 41. This point
too was not raised below, was not briefed, and was not mentioned at oral
argument. Even taking these highly particularized risks into account, and
ignoring their procedural and substantive flaws, would not tip the
Mathews factors in Peralta’s favor. See 

(“[P]rocedural due process rules are shaped by the risk of error inherent
in the truth-finding process as applied to the generality of cases, not the
rare exceptions.” (quoting 

)).
           UNITED STATES V. PERALTA-SANCHEZ                 23

    Peralta argues, however, that counsel could help an alien
subject to expedited removal proceedings obtain withdrawal
relief. See 8 U.S.C. § 1225(a)(4). Withdrawal relief, though,
implies that the alien unlawfully entered or attempted to enter
the United States, meaning that the alien was properly subject
to expedited removal proceedings in the first place. In other
words, withdrawal relief simply provides an alternative
avenue of removal. See 

does not prove
that counsel would be of assistance in preventing an alien
from being wrongfully placed in expedited removal
proceedings or wrongfully removed as a result.

    Peralta also argues that counsel could provide assistance
in cases like his, where a subsequent change in the law calls
into question a previous order of removal. In 1999, Peralta
was ordered removed because he had a felony DUI and, under
BIA decisions, was considered an aggravated felon, a status
that we and the Supreme Court later reversed. Leocal v.
Ashcroft, 

, 13 (2004); United States v. Trinidad-
Aquino, 

, 1146–47 (9th Cir. 2001). We
recognize that Peralta lost his LPR status as a result of this
removal proceeding and that this indirectly led to his
expedited removal in 2012. But allowing Peralta to obtain
counsel at an expedited removal hearing would not have
prevented any “erroneous deprivation” of his rights in the
sense that Mathews v. Eldridge contemplates. Any “error” in
Peralta’s 1999 removal order was the result of a broad policy
that was successfully challenged in the courts. Even if
Peralta had known that his 1999 order was erroneously
obtained, Peralta had no right to enter the United States in
2012, so securing counsel in 2012 would not have aided
24           UNITED STATES V. PERALTA-SANCHEZ

him.12 Cf. Maness v. Meyers, 

, 458 (1975)
(explaining that persons who “refuse to obey [a court] order
generally risk criminal contempt even if the order is
ultimately ruled incorrect”). If Peralta thought that his 1999
removal order was illegal, his remedy was not to sneak back
across the border, but to seek to reopen the removal order
from outside the United States. See Coyt v. Holder, 

, 907 (9th Cir. 2010) (“[P]hysical removal of a petitioner
by the United States does not preclude the petitioner from
pursuing a motion to reopen [immigration proceedings].”).13
In a similar context, we determined that reinstatement of a
previous removal order did not violate due process where the
alien was not entitled to have the validity of the reinstated
order reviewed by an immigration judge:

          While aliens have a right to fair procedures,
          they have no constitutional right to force the
          government to re-adjudicate a final removal
          order by unlawfully reentering the
          country. . . . If [an alien] has a legitimate
          basis for challenging his prior removal order,
          he will be able to pursue it after he leaves the



     12
        Peralta’s 1999 removal order followed issuance of a notice to
appear and a hearing before an immigration judge. The IJ advised Peralta
that he could secure counsel at his own expense and continued the case so
Peralta could do so. Peralta did not obtain counsel.
     13
        We note that Peralta has given no explanation as to why, in the
thirteen years between his initial 1999 removal and his 2012 expedited
removal, he never sought the assistance of counsel, which he now so
earnestly claims could have made a difference in his immigration status.
Instead, Peralta chose to reenter the United States illegally, not once, but
six different times.
           UNITED STATES V. PERALTA-SANCHEZ                  25

       country, just like every other alien in his
       position.

Moralez-Izquierdo v. Gonzales, 

, 498 (9th Cir.
2007).

    We conclude that the risk of wrongful removal under
§ 1225 is quite low, and that providing additional safeguards
in the form of counsel would not significantly improve the
existing process, particularly when weighed against the cost,
which we discuss below.

       c. Government’s interest

    Peralta argues that, “[g]iven that the Government is not
being asked to foot the bill, its vehement opposition to a right
to counsel in expedited removal is baffling, as well as
unreasonable.” We think Peralta underestimates the burden
a right to counsel would place on the government in this
context. Although the government would not have to pay an
alien’s attorney’s fees, Peralta has not taken into account the
costs to the government that would result from the inevitable
delay if an alien is entitled to seek counsel. The government
would have to detain the alien perhaps for days or weeks
longer, while the alien is given “reasonable” time to seek
representation, as we have required in cases in which there is
a statutory right to counsel in removal proceedings, and
which we would presumably require here. See 

–99 (citing Rios-Berrios v. INS, 

, 862–63 (9th Cir. 1985)). If the alien is entitled to
counsel, the government will, in turn, want to provide its own
counsel—as it does in removal proceedings under §§ 1229a
and 1228. “[L]awyers, by training and disposition, are
advocates and bound by professional duty to present all
26         UNITED STATES V. PERALTA-SANCHEZ

available evidence and arguments in support of their clients’
positions and to contest with vigor all adverse evidence and
views.” 

(quoting Gagnon v.
Scarpelli, 

, 787–88 (1973)). The presence of the
lawyers will inevitably complicate the proceedings. As Judge
Friendly put it, “Within the limits of professional propriety,
causing delay and sowing confusion not only are [a lawyer’s]
right but may be his duty.” Henry J. Friendly, Some Kind of
Hearing, 123 U. Pa. L. Rev. 1267, 1288 (1975).

     The expedited removal process is intended to allow the
government to exclude quickly those aliens found at or near
the border who are clearly inadmissible—those who have no
legal entry documents and who have established only a
limited presence here. The introduction of lawyers in the
expedited removal process is likely to turn the proceeding
into something more akin to a trial—and a trial not before an
IJ, but before an immigration officer unqualified to weigh the
competing demands of opposing counsel in what will become
an adversary proceeding.            This will prolong the
decisionmaking process, exponentially increasing the cost to
the government as the government must detain the alien, pay
for the government’s own representation, pay for the creation
of a longer record, and pay for the increased time the
immigration officer must spend adjudicating such cases,
distracting the officer from any other duties. Such a process,
as Judge Friendly recognized in a slightly different context,
is “not formulated for a situation in which many thousands of
hearings must be provided each month.” 

             UNITED STATES V. PERALTA-SANCHEZ                           27

    In short, the introduction of counsel risks destroying the
“expedited” removal process.14 It is in no way “baffling” that
the government so vehemently objects to this. We are also
deeply concerned with the “new and wholly unwarranted
incentive” this is likely to create “for aliens who have
previously been removed to reenter the country illegally in
order to take advantage of this self-help remedy. It would
also make a mockery of aliens who do respect our laws and
wait patiently outside our borders seeking lawful admission.”

.

                                  ***

    In light of the limited benefit a right to counsel is likely to
provide in this context, and in light of the significant cost the
government would likely incur, we refuse to sanction this
kind of self-help, and the wholesale circumvention of our
immigration laws, by finding that aliens who illegally enter
the United States and are subject to expedited removal
proceedings under §1225 are constitutionally entitled to
counsel. “Nothing in the Constitution requires such a
perverse result.” 

.



    14
        The dissent, in a one-paragraph dismissal of the government’s
interest, claims that the cost of providing an attorney “does not appear to
be prohibitive” because the government allows representation in other
types of expedited removal proceedings. Dissent at 42 (citing 8 U.S.C.
§ 1228(b)(4)(B)). But the government’s allowance of representation in
dissimilar proceedings does not mean that the costs of representation in
those proceedings, let alone in the proceedings before us, are not
significant. It just means that the government has chosen to bear those
costs for people in that situation. We have no basis for imposing real costs
on the government simply because Congress has made the choice to
assume such costs in other situations.
28         UNITED STATES V. PERALTA-SANCHEZ

    In sum, Peralta suffered no due process violation when he
was denied counsel in his expedited removal hearing. His
interests in securing counsel are limited, the government’s
interest in having expedited proceedings is high, and we find
there is relatively little risk of error in such proceedings.

B. Right to Be Informed of Withdrawal

     Peralta also argues that he was denied due process
because he was not informed of the possibility of withdrawal
relief under § 1225(a)(4). That section states: “An alien
applying for admission may, in the discretion of the Attorney
General and at any time, be permitted to withdraw his
application for admission and depart immediately from the
United States.” 8 U.S.C. § 1225(a)(4). “In the context of
removal proceedings for aliens who have already been
admitted into the United States, we have held that due process
requires the immigration judge to inform such aliens of
potentially available avenues of relief.” 

(citing United States v. Arce-Hernandez,

, 563 (9th Cir. 1998)); see also Barajas-

(“[T]he Supreme Court has ruled
that when Congress enacts a procedure, aliens are entitled to
it.”). By contrast, “[n]on-admitted aliens . . . who seek entry
at the border ‘are entitled only to whatever process Congress
provides.’” 

(quoting
Barajas-

). Neither § 1225, nor the
corresponding regulations governing expedited removal,
require an immigration officer to advise an alien of the
opportunity to request withdrawal relief, and we have held
that “[a]s a result, the immigration officer’s failure to inform
[an alien] of his ability to request withdrawal of his
application for admission [does] not violate his due process
rights.” 

V. PERALTA-SANCHEZ                  29

    Sanchez-Aguilar dealt with an alien who was detained at
a port-of-entry, not one in Peralta’s position who crossed the
border elsewhere and managed to effect brief entry into the
United States before he was caught by Border Patrol. Thus,
the same confusion we noted above, about the extent to which
an alien in Peralta’s position—one who has effected technical
entry into the United States, but who has not been
admitted—is entitled to due process, applies here. We need
not answer the due process question in this case, however.
Even assuming that Peralta had a due process right to notice
of the possibility of withdrawal relief, Peralta cannot
demonstrate prejudice.

    In order to establish that he was prejudiced by the
government’s failure to notify him of withdrawal relief,
Peralta must “make a ‘plausible’ showing that the facts
presented would cause the Attorney General to exercise
discretion in his favor.” 

(quoting 

). “Plausibility”
requires more than a mere showing of possibility, however.
The Customs and Border Patrol has created an Inspector’s
Field Manual which lays out six factors that should be used
to guide the granting of the Attorney General’s withdrawal
relief. These factors are: (1) the seriousness of the
immigration violation; (2) previous findings of
inadmissibility against the alien; (3) intent on the part of the
alien to violate the law; (4) the ability to easily overcome the
ground of inadmissibility; (5) age or poor health of the alien;
and (6) other humanitarian or public interest considerations.
Customs & Border Patrol, Inspector’s Field Manual § 17.2
(2006); see also 

.

    As to the first factor, the seriousness of the immigration
violation, Peralta argues that his violation was not “serious”
30         UNITED STATES V. PERALTA-SANCHEZ

because he did not present fraudulent documents to attempt
to gain entry to the United States. The use of fraudulent
documents, however, appears to operate as an automatic
disqualifier; this does not mean that the non-use of fraudulent
documents renders repeated immigration violations non-
serious. See Inspector’s Field Manual § 17.2(a); see also
United States v. Garcia-Gonzalez, 

, 1179 (9th
Cir. 2015); 

. Indeed, we
find Peralta’s consistent inability to abide by our immigration
laws, despite several periods of imprisonment as a result of
these violations, to be serious, and to demonstrate a clear
intent to violate the law. We are not sympathetic to Peralta’s
argument that he violated the law merely to “remedy the
unlawful deportation that the Government had perpetrated on
him years before.” There is no evidence that Peralta entered
the United States in order to correct any errors in his prior
immigration proceedings; he had other, lawful avenues
available to him that did not involve further violations of our
immigration laws. Thus, the first and third factors clearly
weigh against him. See 

(finding that “a history of illegal reentries” made the
defendant’s most recent violation “relatively serious”);

(finding that the fact the
defendant was subject to two previous expedited removal
rendered the most recent violation “serious”).

     We find as well that the second and fourth factors, related
to inadmissibility, similarly weigh against Peralta. He argues
that his only prior finding of inadmissibility was the 1999
removal order, based on case law at the time that has now
changed, and that his U.S. citizen children could have sought
adjustment of status on his behalf in 2012. First, we note that
his 1999 removal order was reinstated three times, which
means that he had four findings of inadmissibility. We have
             UNITED STATES V. PERALTA-SANCHEZ                         31

stated before that, even where a prior finding of
inadmissibility may years later be rendered incorrect by a
change in the law, this does not affect its finality for
immigration purposes. See 

(noting that the defendant’s prior finding of inadmissibility
“cut against” his claim that withdrawal relief was plausible,
even if it had “due process concerns” in light of subsequent
changes in the law); 

n.3 (“[A]
determination by this Court on collateral review that a
noncitizen’s conviction was not for a federal aggravated
felony offense would not affect the finality of the prior
removal.” (citing 8 C.F.R. § 1003.23(b)(1))).

    Second, we note that Peralta could not have sought
adjustment of status, and was therefore unlikely to overcome
the previous findings of inadmissibility.15 Adjustment of
status is available only to aliens who are “inspected and
admitted or paroled into the United States,” 8 U.S.C.
§ 1255(a), which Peralta had not been. An alien must also be
admissible at the time he seeks adjustment of status, see 

was inadmissible at the time for at least two
reasons: he had no valid entry documents, see 

and he had been convicted for felony possession
of a controlled substance, see 

see
also, e.g., 

(finding that
the fourth factor weighed against an alien and noting that the
defendant’s state-law conviction for possession of cocaine


    15
       Despite Peralta’s claim that he could have applied for adjustment
of status based on his relationship to his adult U.S. citizen children, we
note that no application for adjustment of status was pending on Peralta’s
behalf at the time, nor, to our, knowledge, has one ever been filed on
Peralta’s behalf by any qualifying relative since his original removal in
1999.
32         UNITED STATES V. PERALTA-SANCHEZ

rendered him inadmissible and therefore ineligible for
adjustment of status). Thus, the second and fourth factors
weigh against Peralta.

     As to the fifth factor, age and poor health, Peralta was
fifty-three years old at the time of his expedited removal in
2012. Despite now claiming that he “suffered many years of
back-breaking labor in the fields,” and that this somehow tilts
the fifth factor in his favor, Peralta told the Border Patrol
agent who took him into custody in 2012 that he was, in fact,
in good health. He also told the agent that he was planning to
travel to Los Angeles to seek work. Indeed, Peralta was
certainly well enough to walk through the desert to enter the
United States, and to hide in the brush to evade Border Patrol.
In short, there is nothing in the record to suggest that Peralta
was in ill health at the time of his expedited removal. This
factor weighs against him as well.

     Finally, we address factor six, humanitarian
considerations. On this point, Peralta principally emphasizes
his long residence in the United States prior to his 1999
removal and the fact that he has three U.S. citizen children.
However, in Barajas-Alvarado, we concluded that an alien’s
“ties to the United States” are “not listed as considerations in
the Inspector’s Field Manual and therefore carry little

. From the record, Peralta’s family
ties are also somewhat unclear. In his most recent arrest, in
2014, Peralta claimed that he was attempting to travel to
Fresno to see his family, but in 2012, he told Border Patrol
that he wanted to travel to Los Angeles to work, making no
mention of his family. Beyond the fact of its existence, there
is little mention of Peralta’s family or his involvement with
it in the record, and as we noted above, there is nothing to
indicate that Peralta’s children had or have attempted to file
           UNITED STATES V. PERALTA-SANCHEZ                 33

an application for adjustment of status on his behalf. Hence,
these facts do not appear to weigh in Peralta’s favor. Even
assuming that this factor did weigh in Peralta’s favor, this
would not be enough to outweigh every other factor against
him.

    Because the majority of the Inspector’s Field Manual
factors weigh against withdrawal relief, Peralta cannot show
that it was “plausible” that he would have been granted this
relief. Accordingly, he cannot show that he was prejudiced
by the immigration officer’s failure to notify him of the
possibility of withdrawal.

                    IV. CONCLUSION

    In sum, we conclude that Peralta’s 2012 expedited
removal was not fundamentally unfair. Peralta had no Fifth
Amendment due process right to counsel in the expedited
removal proceeding under § 1225, and he cannot demonstrate
prejudice resulting from the failure to notify him of the right
to withdraw his application for admission. As a result, his
2012 expedited removal could be used as a predicate for his
§ 1326 conviction. We therefore affirm the district court’s
denial of Peralta’s motion to dismiss the indictment and his
subsequent judgment and sentence, as well as the revocation
of his supervised release.

   AFFIRMED.
34           UNITED STATES V. PERALTA-SANCHEZ

PREGERSON, Circuit Judge, dissenting:

   I dissent. I would hold that there is a due process right to
counsel during expedited removal proceedings.1

I. Expedited Removal

    Expedited removal—the process in which a noncitizen is
removed from the country without a formal removal
proceeding—was established in 1996 as part of the Illegal
Immigration Reform and Immigrant Responsibility Act
(IIRIRA).2 The expedited removal process begins and ends
with a Customs and Border Protection (CBP) officer. There
is no right to appear in front of a judge and no right to hire
legal representation. There is no hearing, no neutral decision-
maker, no evidentiary findings, and no right to appeal. For




     1
     In this case, the right to counsel means the right to hire a lawyer at
no cost to the government.
     2
       Expedited removal under 8 U.S.C. § 1225 (not to be confused with
expedited removal under 8 U.S.C. § 1228, which applies to persons
convicted of aggravated felonies) applies to two types of noncitizens:
(1) arriving noncitizens, except for citizens of Cuba arriving by plane; and
(2) noncitizens who arrive in, attempt to enter, or have entered the U.S.
without having been admitted or paroled at a port-of-entry and who have
not established to the satisfaction of a Customs and Border Protection
officer that they have been physically present in the U.S. continuously for
the two-year period immediately prior to the date of determination of
inadmissibility. 8 U.S.C. § 1225(a)(1), (b)(1)(A)(iii)(II); 8 C.F.R.
§ 235.3(b)(1)(ii).
              UNITED STATES V. PERALTA-SANCHEZ                    35

these reasons, human rights advocates have criticized
expedited removal as a violation of human rights.3

    Hundreds of thousands of people are expeditiously
removed from this country each year. In 2013, the
Department of Homeland Security removed approximately
438,000 noncitizens from the U.S.4 Expedited removals
comprised 44% of all removals.5 An additional 39% of
removals were conducted through Reinstatement of Removal,
another fast track procedure established by IIRIRA with
similarly nonexistent procedural safeguards.6 That means
that 363,540 people—a staggering 83% of the people
removed from the U.S. in 2013—were removed without a
hearing, without a judge, without legal representation, and
without the opportunity to apply for most forms of relief from
removal.

    It is apparent that the expedited removal system is flawed
in many ways. The chance to consult with a lawyer, which is
the subject of this appeal, is just one way to make the process
fair. I would find that such a due process right is mandated
under the Constitution.


     3
       See, e.g., ACLU Foundation, American Exile: Rapid Deportations
That Bypass the Courtroom (Dec. 2014), available at
https://www.aclu.org/files/assets/120214-expeditedremoval_0.pdf
    4
       John F. Simanski, Dep’t of Homeland Sec. Office of Immigration
Statistics, Annual Report: Immigration Enforcement Actions: 2013 1
(Sept. 2014), available at http://www.dhs.gov/sites/default/files/
publications/ois_enforcement_ar_2013.pdf.
    5
        

36             UNITED STATES V. PERALTA-SANCHEZ

II. The Mathews v. Eldridge test weighs in favor of a right
    to counsel.

   The three-part test from Mathews is used to determine
whether an individual has received due process under the
Constitution.7 Under Mathews, we balance:

           First, the private interest that will be affected
           by the official action; second, the risk of an
           erroneous deprivation of such interest through
           the procedures used, and the probable value,
           if any, of additional or substitute procedural
           safeguards; and finally, the Government’s
           interest, including the function involved and
           the fiscal and administrative burdens that the
           additional or substitute procedural
           requirement would entail.8

    The majority concludes that the Matthews test weighs
against establishing a right to counsel in expedited removal
proceedings because Peralta-Sanchez’s interest in securing
counsel is limited, the government’s interest in having
expedited proceedings is high, and there is relatively little
risk of error in such proceedings. Maj. Op. 27.

   I disagree. On balance, the Mathews test weighs in favor
of finding a right to counsel in expedited removal
proceedings.


     7
      Noncitizens found within the U.S. are entitled to due process under
the Fifth Amendment. United States v. Raya-Vaca, 

, 1203
& n.5 (9th Cir. 2014).
     8
         Mathews v. Eldridge, 

, 335 (1976).
               UNITED STATES V. PERALTA-SANCHEZ                       37

    a. Private interest at stake

    The private interest at stake here is significant. An
individual subject to expedited removal, like Peralta-Sanchez,
“stands to lose the right to stay and live and work in this land
of freedom [and] . . . the right to rejoin h[is] immediate
family, a right that ranks high among the interests of the
individual.”9 Upon removal, noncitizens, like Peralta-
Sanchez, may not return to the U.S. for the next five years,
sometimes longer, regardless of whether they later seek entry
with proper documentation.10 Allowing CBP officers to
render a judgment with such harsh consequences without a
hearing and a neutral decision-maker violates the
fundamental values of our society.

    The majority believes that the interest at stake is more
limited because the expedited removal statute targets
noncitizens who have no residence or only a limited residence
in this country. Maj. Op. 19–21. Though the statute may
have been designed to target individuals with limited or no
residence in this country, this is not reality for many
individuals subject to expedited removal.11




    9
     Landon v. Plasencia, 

, 34 (1982) (internal quotation
marks and citations omitted); see also Walters v. Reno, 

,
1043 (9th Cir. 1998).
    10
         8 U.S.C. § 1182(a)(9)(A)(i).
    11
      Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877-01,
48880 (Aug. 11, 2004) (subjecting to expedited removal noncitizens who
are found within 100 miles of the border and who cannot establish that
they have been physically present in the U.S. for the preceding 14 days).
38         UNITED STATES V. PERALTA-SANCHEZ

    Expedited removal allows CBP officers to designate
thousands of noncitizens who have lived in, worked in, and
contributed to our country for many years to be removed
without basic procedural safeguards. These are people who
have close ties in the U.S to their families, their spouses, their
children and grandchildren. Peralta-Sanchez, for example,
moved to the U.S. in 1979 at the age of twenty. For decades,
he lived and worked in the United States. His three adult
children are U.S. citizens by birth. Like so many others,
Peralta-Sanchez’s strong ties to our country did not protect
him from expedited removal.

      The majority argues that allowing individuals to hire
counsel in expedited removal proceedings just because they
were apprehended after crossing into the U.S. (as opposed to
before entering the U.S.) would create “perverse incentives
. . . to further circumvent our immigration laws by avoiding
designated ports-of-entry.” Maj. Op. 21. But the perverse
incentive argument overlooks the fact that most people come
to our country seeking to better their lives and the lives of
their families—that is the incentive to reach U.S. soil, not the
ability to hire a lawyer in a removal proceeding.

    Providing greater procedural safeguards in expedited
removal proceedings would not create any additional
incentives to enter the country than those that already exist.

     b. Erroneous deprivation

    Prior to IIRIRA, any individual who sought entry into the
U.S. without proper documentation or who violated the terms
of his entry visa could present his case to an immigration
judge. This allowed for plenary proceedings and the
opportunity to be represented by a lawyer. The IIRIRA
               UNITED STATES V. PERALTA-SANCHEZ                        39

stripped away almost all of the procedural safeguards then in
place.

    Now, the deportation process can begin and end with a
CBP officer untrained in the law. Once a CBP officer
determines that an individual is inadmissible, the officer will
order immediate removal unless the individual expresses a
fear of persecution, an intent to apply for asylum, or claims
a legal right to reside in the U.S. based on citizenship,
permanent residence, asylum, or refugee status.12 There is no
hearing, no neutral decision-maker, no evidentiary findings,
and no opportunity for administrative or judicial review.13
This lack of procedural safeguards in expedited removal
proceedings creates a substantial risk that noncitizens
subjected to expedited removal will suffer an erroneous
removal.

    Those who are at an obviously higher risk of erroneous
deprivation are individuals who claim asylum or who are
mentally incompetent.14 If a person declares to a CBP officer
that he fears returning to his country of origin, he is entitled
to an interview with an asylum officer to determine whether




    12
         8 U.S.C. § 1225(b)(1)(A)(ii), (b)(1)(C); 8 C.F.R. § 235.3(b)(5).
    13
         8 U.S.C. § 1225(b)(1); 8 C.F.R. § 235.3.
    14
        See Emily Puhl, Prosecuting the Persecuted: How Operation
Streamline and Expedited Removal Violate Article 31 of the Convention
on the Status of Refugees and 1967 Protocol, 25 Berkeley La Raza L.J. 87
(2015); Aimee L. Mayer-Salins, Fast-Track to Injustice: Rapidly
Deporting the Mentally Ill, 14 Cardozo Pub. L. Pol’y & Ethics J. 545
(2016).
40              UNITED STATES V. PERALTA-SANCHEZ

his fear is credible and legitimate under asylum law.15
However, researchers have shown that CBP officers often do
not respond to claims for asylum and fail to refer some bona
fide asylum seekers to an appropriate asylum officer. In one
study, researchers found that 15% of individuals who
expressed a fear of returning to their country of origin were
removed without being afforded the opportunity to participate
in a credible fear interview.16

    The study also uncovered alarming instances of CBP
officers failing to provide even the minimal safeguards
available in expedited removals: (1) CBP officers did not read
the obligatory paragraph informing noncitizens that U.S. law
provides protection to certain persons who face persecution;
(2) CBP officers did not specifically inquire about the
noncitizen’s fear of returning to his or her country; (3) CBP
officers refused interpreters; (4) CBP officers used aggressive
or hostile interview techniques, including sarcasm, ridicule,
verbal threats, and accusations; and (5) CBP officers told
noncitizens to sign documents with little or no explanation of
what they were signing or what the implications might be,
and in most cases these documents were written in a language
the noncitizens were not able to read.17




     15
          8 C.F.R. § 235.3(b)(4); 8 C.F.R. § 208.30.
     16
      Allen Keller, M.D. et al., Evaluation of Credible Fear Referral in
Expedited Removal at Ports of Entry in the United States, Report on
Asylum Seekers in Expedited Removal: Volume II: Expert Reports 1, 20
(Feb. 2005), available at https://www.uscirf.gov/sites/default/files/
resources/stories/pdf/asylum_seekers/evalCredibleFear.pdf.
     17
          

               UNITED STATES V. PERALTA-SANCHEZ                      41

    The risk of erroneous removal is also substantial for
individuals who are incompetent due to mental illness or
disability. In traditional removal proceedings conducted
before an immigration judge, one of the protections afforded
noncitizens who exhibit indicia of mental incompetence is the
right to counsel.18 But in expedited removal proceedings, no
protections, safeguards, or accommodations are provided to
noncitizens with mental illness. The CBP officer does not
even conduct competency determinations.19

    The risk of erroneous deprivation is especially great in
this context given that a noncitizen with mental illness or
competency issues may not comprehend the nature of the
proceedings and may be unable to communicate effectively
or answer basic questions about his identity and
circumstances. Such an individual may have enormous
difficulty in effectively expressing a fear of persecution or
rebutting the charge of inadmissibility.20

   Beyond assessing the risk of erroneous deprivation, the
Mathews test also requires us to assess the “probable value,




     18
        See Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011); Franco-
Gonzalez v. Holder, No. CV 10-02211, 

(C.D. Cal. Apr.
23, 2013).
    19
         

n.14, at 558.
    20
       See, e.g., Renata Robertson, The Right to Court-Appointed Counsel
in Removal Proceedings: An End to Wrongful Detention and Deportation
of U.S. Citizens, 15 Scholar: St. Mary’s L. Rev. & Soc. Just. 567, 582
(2013) (discussing the case of Sharon McKnight, a mentally disabled U.S.
citizen, who was wrongly removed to Jamaica).
42              UNITED STATES V. PERALTA-SANCHEZ

if any, of additional or substitute procedural safeguards.”21
For individuals who fear persecution in their country of origin
or who have competence issues, additional procedural
safeguards, especially in the form of the right to counsel,
would undoubtedly cure many of the ills that plague
expedited removals. Counsel would help clients better
understand the charges of inadmissibility and rebut those
charges based on individualized arguments. Counsel would
also advocate for the use of other procedural safeguards, like
interpreters, that are too often denied. Counsel would help
discover errors in prior removals, which could have a
significant impact on a noncitizen’s status or the expedited
removal. Simply put, the right to counsel would help ensure
that people are not wrongfully removed to their countries of
origin to face persecution or death. To me, the probable
value of additional safeguards is significant.

     c. Government interest

    Certainly, allowing lawyers to represent noncitizens in
expedited removal proceedings would impose an efficiency
cost on the government. However, the government already
allows for legal representation in another type of expedited
removal under 8 U.S.C. § 1228(b)(4)(B). Thus, the efficiency
cost of allowing counsel to participate in expedited removal
proceedings does not appear to be prohibitive. More
importantly, cost considerations should not have a significant
role in determining whether legal counsel should be allowed
when lives and fundamental interests are at stake. It is hard
to believe that, today, we are willing to pay such a high
human price for administrative efficiency.


     

.
              UNITED STATES V. PERALTA-SANCHEZ                            43

III.        Conclusion

    The expedited removal system is flawed; it does not
account for the realities of immigration and the strong ties to
this country held by many noncitizens. The system is also
cruel; it gambles with the lives of hundreds of thousands of
people per year by offering few procedural safeguards. We
can, and should, do better.22 I would hold that there is a due
process right to counsel in expedited removal proceedings.




       22
       See United States v. Otherson, 

, 1285 (9th Cir. 1980)
(Pregerson, J., Ferguson, J., Norris, J.) (“The message of this case is clear.
So long as the American flag flies over the United States courthouses, the
federal courts and the federal justice system stand as bulwarks to assure
that every human being within the jurisdiction of the United States shall
be treated humanely and dealt with in accordance with due process of law
by those entrusted with the power to enforce the law.”).