by Jacob Barrett

The U.S. Court of Appeals for the Fourth Circuit ruled that an immigration judge’s failure to inform an undocumented noncitizen of his right to appeal a deportation order was prejudicial and dismissed a subsequent indictment for illegal reentry in violation of 8 U.S.C. § 1326(a).

In 2006, Bonifacio Fernandez Sanchez, a citizen of Mexico, migrated to the U.S. illegally as a minor. In 2011, he was deported after a four-minute removal hearing. During the hearing, Sanchez told the judge that he wanted to remain in the U.S. because his children and their mother live here and that he’s been taking care of his children since they were born.

The immigration judge presiding over the hearing failed to advise Sanchez that he had a right to appeal the decision as required by 8 U.S.C. § 1229a(c)(4)-(6) (2011). See also 8 C.F.R. § 1240.10(a)(3) (2011) (judge required to confirm that noncitizen received “a copy of appeal rights”) and 8 C.F.R. § 1240.13(d) (2011) ( immigration judge required to advise removable noncitizen of their right to appeal to the Board of Immigration Appeals). The judge indicated in his written summary order that Sanchez had waived his right to appeal even though no such discussion took place on the record.

Over the years, Sanchez reentered the U.S. and was deported each time. In 2018, after entering the U.S. again illegally, he was charged with illegal reentry pursuant to 8 U.S.C. § 1326(a).

Sanchez moved the U.S. District Court for the Western District of Virginia to dismiss the indictment, arguing the 2011 order serving as the basis for the §1326 charge was invalid. The District Court granted his motion, ruling that the immigration judge’s failure to inform Sanchez that he was eligible for voluntary departure in his 2011 removal rendered the proceeding “fundamentally unfair.” The Government appealed.

While the appeal was pending, the Fourth Circuit effectively rejected the District Court’s reasoning and conclusion in United States v. Herrera-Pagoada, 14 F.4th 311 (4th Cir. 2021) (holding that a noncitizen “has no constitutional right to be advised of his eligibility for discretionary relief” such as pre-conclusion voluntary departure). Sanchez conceded that Herrera-Pagoada foreclosed his original argument but argued in a supplemental briefing that he “suffered another due process violation, namely the denial of his right to appeal the [immigration judge’s] removal order” because of the uninformed (fabricated) waiver. Thus, he argued that this violation “prejudiced him,” so the District Court’s judgment should be affirmed on this alternate ground. See United States ex rel. Drakeford v. Tuomey, 792 F.3d 364 (4th Cir. 2015) (court “may affirm a district court’s ruling on any ground apparent in the record”).

The Court began its analysis by observing noncitizens charged with illegal reentry have a due process right to “collaterally attack the propriety of the[ir] original deportation order in the later criminal proceeding.” United States v. El Shami, 434 F.3d 659 (4th Cir. 2005); United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021).

Successfully attacking the underlying deportation order requires the defendant to show (1) he “exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived [him] of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.” § 1326(d). If the defendant satisfies all three prongs, “the illegal reentry charge must be dismissed as a matter of law.” El Shami.

The Court noted that the Government conceded that Sanchez satisfied the first two prongs, so the only issue on appeal is whether he established that his deportation order was “fundamentally unfair.” To do so, he “must show that (1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.” United States v. Wilson, 316 F.3d 506 (4th Cir. 2003).

Turning to the present case, the Government waived the due-process prong of the analysis because it didn’t timely or adequately contest it, according to the Court. Consequently, the Court assumed that the immigration judge’s denial of Sanchez’s appellate rights was a due-process violation and proceeded to the second prong, i.e., “fundamental unfairness.”

The standard for satisfying the second prong requires the defendant to “show that he suffered actual prejudice as a result of the due process violation in the removal proceedings.” United States v. Lopez-Collazo, 824 F.3d 453 (4th Cir. 2016). The Court explained that a general showing of prejudice is insufficient; instead, the actual prejudice claimed must be linked to the specific due process violation. Id. This can be satisfied by showing that “but for the [due-process] errors … there was a reasonable probability that [the defendant] would not have been deported.” El Shami. “Reasonable probability” means a probability that’s sufficient to “undermine confidence in the outcome.” United States v. Terrazas-Silas, 811 F. App’x 845 (4th Cir. 2020).

The Court stated that for Sanchez to prevail, he must establish that he (1) would have been successful in his appeal if he had the opportunity and (2) would have asked for and been granted voluntary departure on remand.

Turning to the first prong, the Court concluded that Sanchez would have successfully appealed his removal order if he had been given the opportunity, and his case would have been remanded for further proceedings. It based its determination on the fact he told the immigration judge that he wanted to remain in the U.S. to support his children, and he demonstrated a willingness to use the legal process by exercising his right to an immigration hearing and requested reconsideration of the pretrial custody decision. The Court added that he would have been successful on appeal before the Board of Immigration Appeals because it has held that an immigration judge’s failure to consider pre-conclusion voluntary departure for a potentially eligible noncitizen is reversible error. In re Cordova, 22 I. & N. Dec. 966.

As to the second prong, the Court declared that it has “little trouble” concluding that Sanchez would have been granted pre-conclusion voluntary departure on remand because he satisfies all five of the factors listed in 8 C.F.R. § 1240.26(b)(1)(i) (2011) as well as the requirement that he merits a favorable exercise of discretion. In re Arguelles-Campos, 22 I. & N. Dec. 811.

The Government argued that even if Sanchez satisfies the foregoing two prongs he must still show that he would have actually departed the U.S. in a timely manner. The Court rejected that argument in a lengthy discussion of the governing statutes and case law.

Thus, the Court concluded that “there is a reasonable probability that, but for the denial of his appeal rights, [Sanchez] would not have been deported,” and so his 2011 removal hearing was fundamentally unfair.

Accordingly, the Court affirmed the District Court’s dismissal of Sanchez’s indictment. See: United States v. Sanchez, 46 F.4th 211 (4th Cir. 2022). 

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