Whether an alien wrongly subject to expedited removal due to mischaracterization of prior conviction meets statutory requirements for challenging removal when misled by official form

A noncitizen, unlawfully present in the United States, may be deported through an expedited removal if an immigration officer finds that the noncitizen was convicted of a crime categorized as an aggravated felony. Often, the full process that such a noncitizen receives is an immigration official presenting him with a form that waives his rights to challenge the expedited removal. That form, I-851, informs him that he can contest the removal if he is a United States citizen, lawfully admitted permanent resident, or did not commit the crime alleged. The form does not inform him of his ability to challenge the aggravated felony finding. This case presents a question that has divided the circuits: Whether an alien wrongly subject to an expedited removal—due to a mischaracterization of his prior conviction as an aggravated felony—meets the requirements of 8 U.S.C. § 1326(d) by showing that he was misled by the form and would not have otherwise been subject to an expedited removal.