Holding that (1) when expedited removal is alleged to be an element in a criminal prosecution under 8 U.S.C. § 1326, the defendant must, as a matter of due process, be able to challenge the element if he did not have a prior opportunity to do so, and thus the jurisdiction-stripping provision in 8 U.S.C. § 1225(b)(1)(D) is unconstitutional, but (2) the Defendant in the instant case failed to establish that the expedited removal procedure was fundamentally unfair because he did not demonstrate prejudice.

Date of Decision