US v. Agustin Lopez-Collazo

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cr-00486-ELH-1. [999838839]. [15-4312]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4312

UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
AGUSTIN LOPEZ-COLLAZO, a/k/a Agustin Martinez-Lopez, a/k/a
Agustin Lopez,
Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Ellen L. Hollander, District Judge.
(1:14-cr-00486-ELH-1)

Argued:

December 9, 2015

Before TRAXLER,
Judges.

Chief

Judge,

Decided:

and

GREGORY

and

June 1, 2016

DIAZ,

Circuit

Reversed and remanded by published opinion. Chief Judge Traxler
wrote the opinion in which Judge Diaz joined.
Judge Gregory
wrote a dissenting opinion.

ARGUED: Sujit Raman, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellant.
Joanna Beth Silver, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellant.
James Wyda, Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellee.

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TRAXLER, Chief Judge:
In June 2007, Agustin Lopez-Collazo, an illegal alien from
Mexico,

was

placed

in

expedited

removal

proceedings

when

immigration officials from the Department of Homeland Security
(“DHS”) determined that his conviction for second degree assault
in Maryland constituted an “aggravated felony.”
1228(b).

Lopez-Collazo

did

not

contest

See 8 U.S.C. §

the

DHS’s

charges

against him and was removed to Mexico in November 2007.

Soon

after, Lopez-Collazo again entered the United States illegally;
he was subsequently discovered and indicted for illegal reentry
by a deported alien in violation of 8 U.S.C. § 1326(a), (b)(2).
The district court granted Lopez-Collazo’s motion to dismiss the
indictment
removal

under

order

§

was

1326(d),
invalid

concluding

because

DHS

that

the

failed

to

underlying
explain

to

Lopez-Collazo in his native language either the removal charges
against him or his right to contest the charges or obtain legal
representation.

See

United

States

v.

Lopez-Collazo,

105

F.

Supp. 3d 497 (D. Md. 2015).
The

government

appeals,

arguing

that

even

assuming

the

administrative removal proceedings were procedurally defective,
Lopez-Collazo

cannot

establish

prejudice.

The

government

contends that even if DHS had provided Lopez-Collazo a Spanishlanguage translation of the removal charges and his right to

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contest them, it would not have made a difference—he still would
have been removed to Mexico.
For the reasons that follow, we agree with the government
and

reverse

indictment.

the

order

of

the

district

court

dismissing

the

We remand this case to the district court with

instructions that the indictment be reinstated.
I.
A.
Lopez-Collazo’s 2007 Removal to Mexico and Subsequent
Indictment for Illegal Reentry in Violation of 8 U.S.C. §
1326(a), (b)(2)
Agustin Lopez-Collazo is a native of Mexico who entered the
United States without authorization prior to 2005.

In January

2005, Lopez-Collazo pled guilty under Maryland law to a theft
offense involving less than $500.
§ 7-104.

See Md. Code Ann., Crim. Law

In May 2007, he pled guilty under Maryland law to

second degree assault, see Md. Code Ann., Crim. Law § 3-203, for
which he was sentenced to 18 months imprisonment, with all but
72 days suspended, and given 18 months probation.
The Office of Immigration and Customs Enforcement (“ICE”)
took

notice

of

Lopez-Collazo

following

his

2007

assault

conviction and initiated expedited removal proceedings against
him.

Under 8 U.S.C. § 1228(b), an alien who is not a permanent

resident and who has been convicted of an aggravated felony is
amenable to expedited administrative removal proceedings.
U.S.C. § 1228(b)(1), (2), (4); 8 C.F.R. § 238.1.
3

See 8

Expedited

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removal proceedings are governed by DHS regulations set forth in
8

C.F.R.

§

238.1.

See

8

U.S.C.

§

1228(b)(4)

(“Proceedings

before the Attorney General under this subsection shall be in
accordance with such regulations as the Attorney General shall
prescribe.”). 1
In

contrast

removal

to

proceedings

immigration judge.

standard

removal

proceedings,

do

involve

a

not

hearing

expedited
before

an

Rather, a DHS immigration officer determines

whether the alien is removable as an “aggravated felon[]” under
8

U.S.C.

removable

§

1227(a)(2)(A)(iii),

“by

clear,

and,

convincing,

and

upon

finding

unequivocal

the

alien

evidence,”

issues a “Final Administrative Removal Order” without referring
the

case

to

an

immigration

judge,

8

C.F.R.

§

238.1(d).

Significantly, aliens subject to expedited removal are barred
from discretionary forms of relief such as voluntary departure.
See 8 U.S.C. § 1228(b)(5); Jankowski-Burczyk v. INS, 291 F.3d
172, 179 (2d Cir. 2002) (noting that alien removed pursuant to §
1228(b)

“is

categorically

barred

1

from

receiving

any

form

of

Although 1228(b)(4) refers to the “Attorney General,” the
Homeland
Security
Act
of
2002
transferred
authority
to
promulgate regulations to the Department of Homeland Security.
See Valdiviez-Hernandez v. Holder, 739 F.3d 184, 191 n.3 (5th
Cir. 2013) (per curiam) (citing Pub. L. No. 107–296, sec. 441,
116 Stat. 2135, 2177). And, where functions are transferred by
the Act to DHS, statutory references to the authority that was
formerly responsible for those functions will be deemed to refer
to DHS. See 6 U.S.C. § 557.

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discretionary relief”). 2

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An alien subject to expedited removal

cannot administratively appeal an adverse decision to the Board
of Immigration Appeals, see generally 8 U.S.C. § 1228(b)(3); 8
C.F.R. § 238.1, but has a 14-day period “to apply for judicial
review under [8 U.S.C. § 1252],” 8 U.S.C. § 1228(b)(3).
In the fall of 2007, immigration officials placed LopezCollazo in expedited removal proceedings.
Form

I-851

Notice

of

Intent

to

Issue

ICE agents prepared a
a

Final

Administrative

Removal Order (“NOI”), charging that Lopez-Collazo was removable
because both the 2007 assault offense and the 2005 theft offense
qualified

as

aggravated

1227(a)(2)(A)(iii).
that

the

2007

felonies

under

8

U.S.C.

§

More specifically, the Government charged

Maryland

conviction

for

second

degree

assault

constituted a “crime of violence,” and therefore an aggravated
felony,

under

8

U.S.C.

§

1101(a)(43)(F),

and

that

the

2005

Maryland theft offense constituted “a theft offense . . . for
which the term of imprisonment [is] at least one year,” and
therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(G).

2

There are limited circumstances in which an alien subject
to expedited removal may obtain review by an immigration judge.
Such an alien may seek a determination that he is eligible for
withholding of removal, which is non-discretionary.
Upon the
alien’s request, an asylum officer must perform a reasonable
fear interview; the alien may seek review from an immigration
judge of a negative reasonable fear determination. See 8 C.F.R.
§ 208.31.
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The NOI also contained a pre-printed section explaining the
alien’s “Rights and Responsibilities,” including the right to
legal representation and the right to contest the charges:
You may choose to be represented (at no expense to the
United States government) by counsel, authorized to
practice in this proceeding. If you wish legal advice
and cannot afford it, contact legal counsel from the
list of available free legal services provided to you.
You must respond to the above charges in writing . . .
within 10 calendar days of service of this notice (or
13 calendar days if service is by mail).
In your
response you may: request, for good cause, an
extension of time; rebut the charges stated above
(with supporting evidence); request an opportunity to
review the government’s evidence; admit deportability;
and/or designate the country to which you choose to be
removed in the event that a final order of removal is
issued . . . .
You
may
seek
judicial
review
of
any
final
administrative order by filing a petition for review
within 14 calendar days . . . or you may waive such
appeal . . . .
J.A. 19.
The NOI was in English.
served

Lopez-Collazo

with

An immigration officer personally

the

NOI

on

October

5,

2007,

and

explained the form to him in English.
On the reverse side of the NOI form, there are three boxes
presenting the alien’s options in response to the charges set
forth in the NOI.

The first box is an acknowledgment of receipt

of the NOI, which was signed by Lopez-Collazo and witnessed by
the immigration officer who served the NOI.

The second box

states, “I WISH TO CONTEST” and offers, in checkbox fashion,
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several possible bases for the alien to contest removal.
third box states, “I DO NOT WISH TO CONTEST.”

The

Lopez-Collazo

signed under the following language contained in the third box:
I admit the allegations and charge in this Notice
of Intent.
I admit that I am deportable and
acknowledge that I am not eligible for any form of
relief from removal.
I waive my right to rebut and
contest the above charges and my right to file a
petition for review of the Final Removal Order. . . .
J.A. 163.

Lopez-Collazo indicated on the form his preference

that he be removed to Mexico.

In November 2007, he was removed

to Mexico.
Lopez-Collazo

returned

Arizona

July

immediately,

into

discover

Lopez-Collazo

Maryland

for

arrest.

This time, however, rather than placing him in removal

until
under

2008.

unlawfully

crossing

driving

in

almost

2014,
the

Authorities

when

he

influence

was

and

did

arrested

for

not
in

resisting

proceedings, the government charged him with a federal crime.
In October 2014, Lopez-Collazo was indicted for being present
unlawfully in the United States after having been removed, in
violation of 8 U.S.C. § 1326.
B.
Lopez-Collazo’s Motion under
Indictment for Illegal Reentry
Lopez-Collazo

moved

to

§

dismiss

1326(d)

the

to

indictment,

that it was based on an invalid removal order.
1326(d).
reentry

Under
is

§

1326(d),

permitted

to

a

defendant

collaterally
7

Dismiss

claiming

See 8 U.S.C. §

charged

attack

His

a

with

illegal

prior

removal

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To prevail, the defendant must show that “(1) the alien

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
the alien of the opportunity for judicial review; and (3) the
entry of the order was fundamentally unfair.”

Id.

Because

“[t]hese requirements are listed in the conjunctive, . . . a
defendant must satisfy all three in order to prevail.”

United

States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005) (internal
quotation marks omitted).
1326(d)’s

requirements,

illegal reentry charge.

When the defendant satisfies all of §
the

district

court

must

dismiss

the

See id.

The government argued that Lopez-Collazo could not satisfy
§ 1326(d)’s exhaustion requirement because on the NOI form he
expressly waived the right to contest the charges against him or
seek

judicial

review

of

the

removal

order.

Likewise,

the

government maintained that Lopez-Collazo could not establish, as
required

by

§

1326(d),

judicial review.

that

he

was

improperly

deprived

of

An alien subject to an administrative order of

removal entered after expedited proceedings is permitted to seek
judicial review under 8 U.S.C. § 1252(a)(2)(D).
1228(b)(3).

In

response,

Lopez-Collazo,

a

See 8 U.S.C. §
native

Spanish

speaker who understood almost no English, argued that the waiver
was invalid because neither the charges nor the waiver language
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set forth on the NOI form were translated into Spanish or read
to him by a Spanish translator.
The district court found it “patently clear” that LopezCollazo in 2007 “did not read or understand English to an extent
sufficient to enable him to comprehend the NOI or the Waiver
form, which were written in English, or to make a knowing and
informed decision on the basis of forms that he could not read.”
Lopez-Collazo, 105 F. Supp. 3d at 512.

Thus, the district court

concluded that Lopez-Collazo’s waiver was invalid.
Once

the

district

court

determined

that

the

waiver

was

invalid, it concluded in turn that Lopez-Collazo was excused
from having to show that he had exhausted his administrative
remedies

and

that

he

had

been

deprived

of

judicial

review,

following an approach embraced by some appellate courts.

See,

e.g., United States v. Reyes-Bonilla, 671 F.3d 1036, 1045 (9th
Cir. 2012); United States v. Sosa, 387 F.3d 131, 136-38 (2d Cir.
2004).

The government does not contest the district court’s

ruling that the waiver was invalid or that the “invalid waiver
excuses

his

burden

administrative
deportation

to

remedies”

proceedings

show

that

and

“suffices

improperly

opportunity for judicial review.”
3d at 513.

he

exhausted

available

to

that

the

of

the

deprived

show
him

Lopez-Collazo, 105 F. Supp.

Accordingly, for purposes of this appeal, the first

two requirements of § 1326(d) were satisfied by Lopez-Collazo,
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and we focus solely on the final requirement for collaterally
attacking an order of removal under § 1326(d): that “the entry
of the order was fundamentally unfair.”

8 U.S.C. § 1326(d)(3).

Lopez-Collazo offered three reasons why the 2007 removal
order was fundamentally unfair.

First, he contended that the

entry of the removal order was fundamentally unfair because his
convictions

under

Maryland

law

for

second-degree

assault

and

theft of less than $500 did not constitute aggravated felonies
under Descamps v. United States, 133 S. Ct. 2276 (2013), and
United States v. Royal, 731 F.3d 333 (4th Cir. 2013), and he was
therefore

not

contended

removable

that

because

as

charged.

his

Second,

offenses

were

Lopez-Collazo

not

aggravated

felonies, immigration officials should have advised him in 2007
that he was eligible for “voluntary departure” from the United
States

which,

unlike

removal,

illegal reentry conviction.

cannot

be

a

predicate

for

an

See United States v. Ortiz-Lopez,

385 F.3d 1202, 1204 n.1 (9th Cir. 2004) (per curiam) (“[I]f
[defendant] had departed voluntarily instead of being removed,
he would not now be liable under 8 U.S.C. § 1326 for illegal
reentry

following

removed.”).
order

was

removal,

because

he

would

never

have

been

Finally, Lopez-Collazo argued that the 2007 removal
“fundamentally

unfair”

because

the

government’s

failure to provide a Spanish translation of the charges in the
NOI deprived him of a meaningful opportunity to seek voluntary
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departure

or

response,

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otherwise

the

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challenge

government

argued

his
that

removal

order.

In

Lopez-Collazo's

pre-

Descamps Maryland offenses qualified as aggravated felonies in
2007 and that therefore he was removable subject to expedited
removal proceedings and ineligible for voluntary departure.
The district court agreed with Lopez-Collazo that the entry
of the 2007 removal order was “fundamentally unfair” as required
by § 1326(d).

Specifically, the district court determined that

the government’s failure to provide a Spanish translation of the
charges against him deprived him of a fundamental due process
right to the “opportunity to be heard at a meaningful time and
in a meaningful manner,” Lopez-Collazo, 105 F. Supp. 3d at 515
(internal

quotation

marks

omitted),

under

the

standard

articulated in United States v. El Shami, 434 F.3d 659, 664-65
(4th Cir. 2005).

Reasoning that a “competent translator” is

necessary “to ensure the fairness of proceedings to applicants
who do not speak English,” 105 F. Supp. 3d at 516 (internal
quotation

marks

omitted),

the

district

court

concluded

that

Lopez-Collazo was not afforded “the opportunity to be heard at a
meaningful time and in a meaningful manner,” El Shami, 434 F.3d
at

664-65

(internal

quotation

marks

omitted).

The

district

court explained:
[T]he facts indisputably show that, to the extent
Lopez-Collazo had any opportunity to be heard, the
proceedings were conducted in a language he did not
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speak, and ended with him making an uncounseled,
unknowing waiver of his ability to challenge the
charges
against
him,
either
via
available
administrative remedies or upon petition for judicial
review.
Lopez-Collazo,

105

F.

Supp.

3d

at

517.

Thus,

the

court

concluded that because Lopez-Collazo’s due process rights were
abridged

in

the

removal

process,

the

entry

of

the

order

of

removal was fundamentally unfair.
Finally,
Collazo

the

suffered

district
any

court

prejudice,

considered
correctly

whether

Lopez-

recognizing

that

“[u]nder the fundamental fairness prong of a collateral attack
on a prior removal order, a defendant must establish that ‘the
deficiencies in the deportation proceedings caused him actual
prejudice.’”
The

Id. at 518 (quoting El Shami, 434 F.3d at 665).

district

court

concluded

that

had

Lopez-Collazo

been

afforded a fair and meaningful opportunity to be heard on the
charges against him, there was a reasonable probability that he
would have ultimately been granted voluntary departure.
district

court

explained

that,

“although

Lopez-Collazo

The
would

have remained removable on other grounds, I am satisfied that
there

is

a

reasonable

probability

that

an

immigration

judge

would have granted a request for voluntary departure, in lieu of
deportation.”

Id.

at

519.

To

reach

this

conclusion,

the

district court applied current law rather than the law as it was
understood at the time of his removal in 2007.
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The district

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court

held

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under

that

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law,

current

Lopez-Collazo’s

Maryland

assault conviction did not constitute an aggravated felony and
that

Lopez-Collazo

departure.

therefore

Accordingly,

had

the

been

court

eligible
granted

for

voluntary

Lopez-Collazo’s

motion and dismissed the indictment.
The government appeals the district court’s order and seeks
reinstatement of the indictment.
court’s

grant

of

a

motion

In considering the district

under

§

1326(d)

to

dismiss

an

indictment, we review the court’s legal conclusions de novo and
its factual findings for clear error.

See United States v.

Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005).
II.
We

focus

requirement

of

our
§

attention

on

1326(d).

the

“To

fundamental

demonstrate

fairness

fundamental

unfairness” in the entry of the removal order, “a defendant 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.”

El Shami, 434 F.3d at

664 (internal quotation marks omitted).

We consider each prong

below.
A.

Due Process

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

lawful,

unlawful,

temporary,
13

or

permanent.”

Zadvydas

v.

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Davis,

533

Filed: 06/01/2016

U.S.

678,

693

Pg: 14 of 33

(2001);

see

Shaughnessy

v.

United

States ex rel. Mezei, 345 U.S. 206, 212 (1953) (“[A]liens who
have

once

expelled

passed
only

through

after

our

gates,

proceedings

even

illegally,

conforming

to

may

be

traditional

standards of fairness encompassed in due process of law.”).

An

alien “may not be deprived of his life, liberty or property
without due process of law,” meaning that “before his expulsion,
he is entitled to notice of the nature of the charge and a
hearing

at

tribunal.”
(1953).

least

before

an

executive

or

administrative

Kwong Hai Chew v. Colding, 344 U.S. 590, 596-97

Due process requires, at a minimum, that an alien be

given “(1) notice of the charges against him, (2) a hearing
before an executive or administrative tribunal, and (3) a fair
opportunity to be heard.”

El Shami, 434 F.3d at 665 (internal

quotation marks omitted). 3

Thus, an alien subject to expedited

3

The expedited administrative removal scheme, in and of
itself, “comports with the minimum requirements of due process.”
United States v. Benitez-Villafuerte, 186 F.3d 651, 657-58 (5th
Cir. 1999); see United States v. Rangel de Aguilar, 308 F.3d
1134, 1138 (10th Cir. 2002); United States v. Garcia-Martinez,
228 F.3d 956, 960-63 (9th Cir. 2000).
The statutory
administrative removal scheme mandates, among other things, that
the alien be “given reasonable notice of the charges,” 8 U.S.C.
§ 1228(b)(4)(A); be allowed to secure representation, see id. §
1228(b)(4)(B); and be given “a reasonable opportunity to inspect
the evidence and rebut the charges,” id. § 1228(b)(4)(C).
Additionally, the statute prohibits the Attorney General from
executing an order of removal until 14 days have passed from the
issuance of the order so that the alien may seek judicial review
under § 1252. See id. § 1228(b)(3).
14

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removal

is

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entitled

to

“the

Pg: 15 of 33

opportunity

to

be

meaningful time and in a meaningful manner.”

heard

at

a

Id. at 664-65

(internal quotation marks omitted).
Such a meaningful opportunity does not exist, however, when
the alien does not understand the proceedings without the aid of
a translator.
right
absent

to

an

an

participate

“A non-English-speaking alien has a due process
interpreter

at

interpreter,
in

the

a

her

deportation

non-English

hearing

and

her

hearing

speaker’s

due

because,

ability

process

right

to

to

a

meaningful opportunity to be heard are essentially meaningless.”
Nazarova v. INS, 171 F.3d 478, 484 (7th Cir. 1999); see Marincas
v.

Lewis,

92

F.3d

195,

204

(3d

Cir.

1996)

(“[A]

competent

translator” is critical “to ensure the fairness of proceedings
to

applicants

who

do

not

speak

English.”).

An

alien’s

due

process right to a meaningful opportunity to be heard would be
pointless

in

a

removal

proceeding

wherein

the

decision-maker could not understand each other.

alien

and

See Marincas,

92 F.3d at 204.
The district court concluded that Lopez-Collazo was denied
an

“opportunity

meaningful

to

manner,”

be
El

heard

at

Shami,

a

434

meaningful
F.3d

at

time
664-65

and

in

a

(internal

quotation marks omitted), based on “abundant evidence that . . .
Lopez-Collazo

required

translation

assistance

in

order

to

understand the NOI, the Waiver, and legal proceedings,” Lopez15

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Collazo, 105 F. Supp. 3d at 516.

Thus, in view of the fact that

“the proceedings were conducted in a language he did not speak,
and ended with him making an uncounseled, unknowing waiver of
his ability to challenge the charges against him,” id. at 517,
the district court found that Lopez-Collazo established that his
due process rights were violated by a defect in his removal
proceedings.
The

government

concedes

that

the

expedited

removal

proceedings in this case did not comport with due process on the
alternative basis that in failing to provide Lopez-Collazo with
a Spanish translation of the NOI, the DHS failed to comply with
its own procedures:
The Service must either provide the alien with a
written translation of the Notice of Intent or explain
the contents of the Notice of Intent to the alien in
the alien’s native language or in a language that the
alien understands.
8 C.F.R. § 238.1(b)(2)(v).

The government allows that DHS’s

failure to adhere to its own regulations was a violation of due
process that enabled Lopez-Collazo to establish the first prong
of § 1326(d)’s fundamental unfairness requirement.
For the reasons stated by the district court, we agree that
DHS’s failure to afford Lopez-Collazo a Spanish translation of
the charges in the NOI and his rights rendered Lopez-Collazo’s
removal
rights.

proceedings

defective

and

abridged

his

due

process

Accordingly, we turn to the prejudice inquiry.
16

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United States v. Gomez, 757 F.3d 885, 892-93 (9th Cir. 2014)
(“Once a due process or a qualifying regulatory violation has
been established, we evaluate the third prong of § 1326(d) (that
the

deportation

order

was

‘fundamentally

unfair’)

as

a

‘prejudice’ inquiry.”).
B.
To

establish

defendant

must

Prejudice

fundamental

show

that

he

unfairness
suffered

under

actual

§

1326(d),

prejudice

as

a
a

result of the due process violations in the removal proceedings.
See El Shami, 434 F.3d at 665 (“[A defendant] has to show under
the

fundamental

unfairness

requirement

.

.

.

that

the

deficiencies in the deportation proceedings caused him actual
prejudice.”).
requirement,

For Lopez-Collazo to meet the actual prejudice
he

must

demonstrate

“that,

but

for

the

errors

complained of, there was a reasonable probability that he would
not have been deported.”
of

prejudice;

rather,

Id.
the

This is not a generalized showing
defendant

must

link

the

actual

prejudice he claims to have suffered to the specific due process
violation at issue.

See United States v. Fernandez-Antonia, 278

F.3d 150, 159 (2d Cir. 2002) (“[Defendant] must show both a
fundamental procedural error and prejudice resulting from that
error.”

(emphasis

added));

Garcia-Martinez,

228

F.3d

at

963

(explaining that a defendant “must demonstrate that prejudice
resulted from the asserted procedural defect” (emphasis added)).
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The

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district

court

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concluded

that

“but

for

the

errors

complained of”—i.e., the lack of a Spanish translation of the
NOI’s charges against him or an explanation of his right to
challenge

the

reasonable

charges

and

probability

obtain

that

legal

counsel—“there

Lopez-Collazo

would

was

have

a

been

granted voluntary departure, . . . thereby avoiding deportation”
and prosecution under § 1326.
530-31.

Lopez-Collazo, 105 F. Supp. 3d at

The court’s conclusion presupposed that once Lopez-

Collazo successfully challenged the classification of his prior
state

convictions

as

aggravated

felonies

and

established

eligibility for discretionary relief, there was a “reasonable
probability” that an immigration judge would have granted him
voluntary departure on the basis that the “positive equities” of
Lopez-Collazo’s case outweighed the negative ones.
We cannot agree.

Id. at 530.

As explained below, the district court’s

prejudice analysis necessarily rests on the flawed conclusion
that had Lopez-Collazo challenged the charges set forth in the
NOI

in

2007,

the

conviction

for

second-degree

assault

in

Maryland would not have been considered an aggravated felony.
But

circuit

precedent

at

the

time

of

Lopez-Collazo’s

administrative removal in 2007 tells us otherwise.
1. Framework for Determining if an Offense Constitutes an
“aggravated felony” under the Immigration and Nationality Act

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“When

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the

Government

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alleges

that

a

state

conviction

qualifies as an ‘aggravated felony’ under the INA, we generally
employ a ‘categorical approach’ to determine whether the state
offense

is

comparable

to

an

offense

listed

in

the

INA.”

Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013); see Nijhawan
v. Holder, 557 U.S. 29, 33–38 (2009).

“Although the categorical

approach was first introduced in the context of criminal law, it
‘has a long pedigree in our Nation’s immigration law.’”

Etienne

v. Lynch, 813 F.3d 135, 142 (4th Cir. 2015) (quoting Moncrieffe,
133 S. Ct. at 1685).

“Under this approach we look not to the

facts of the particular prior case, but instead to whether the
state

statute

defining

the

crime

of

conviction

categorically

fits within the generic federal definition of a corresponding
aggravated felony.”

Moncrieffe, 133 S. Ct. at 1684 (internal

quotation marks omitted).

“The reason is that the INA asks what

offense the noncitizen was ‘convicted’ of, . . . not what acts
he

committed.”

1227(a)(2)(A)(iii)).

Id.

the

inquiry,

at

1685

(quoting

8

U.S.C.

§

as

An alien’s actual conduct is irrelevant to
the

adjudicator

“must

presume

that

the

conviction rested upon nothing more than the least of the acts
criminalized”

under

the

state

statute.

See

id.

at

1684

(internal quotation marks and alterations omitted).
In a limited class of cases, of course, it is appropriate
for a court to look beyond the fact of conviction in deciding
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whether an offense constitutes a violent felony.
United

States,

495

U.S.

575,

602

(1990).

See Taylor v.
This

“modified

categorical approach,” applies to “state statutes that contain
several

different

crimes,

each

Moncrieffe, 133 S. Ct. at 1684.

described

separately.”

In such cases, “a court may

determine which particular offense the noncitizen was convicted
of by examining the charging document and jury instructions, or
in the case of a guilty plea, the plea agreement, plea colloquy,
or some comparable judicial record of the factual basis for the
plea.”

Id. (internal quotation marks omitted).

At

the

time

of

Lopez-Collazo’s

removal

in

2007,

this

circuit had nearly ten years of precedent applying the modified
categorical

approach

to

determine

whether

a

given

assault conviction constituted a violent crime.
considered

whether

a

conviction

for

common

Maryland

In 1998, we

law

assault

in

Maryland constituted a crime of violence for purposes of the
career offender guideline set forth in U.S.S.G. § 4B1.1.

See

United States v. Kirksey, 138 F.3d 120, 122 (4th Cir. 1998).
concluded

that

categorically

a

a

Maryland

crime

of

assault

violence

conviction

because

“an

was

assault

We
not

is

an

attempted battery” and, in turn, a battery under Maryland law
“embraces a wide range of conduct, including kissing without
consent, touching or tapping, jostling, and throwing water upon
another.”

Id.

at

125

(internal
20

quotation

marks

omitted).

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Therefore, because it was “unclear whether . . . the conduct
encompassed

in

the

crime

of

battery

[categorically]

constitute[d] the use of physical force against the person of
another

to

the

degree

required

to

constitute

a

crime

of

violence,” id., we held that under Taylor we were obligated to
“look beyond the definition of the crime to examine the facts
contained in the charging document,” id. at 124.
Shortly

thereafter,

the

en

banc

court

affirmed

this

approach in United States v. Coleman, 158 F.3d 199, 200 (4th
Cir. 1998) (en banc), which applied the modified categorical
approach to determine whether a common-law assault conviction
under Maryland law was a “violent felony” for purposes of the
Armed Career Criminal Act (“ACCA”).

Noting that it was “unable

to conclude that a Maryland conviction for common-law assault is
per

se

a

violent

felony

within

the

meaning

of

§

924(e)(2)(B)(i),” the en banc court concluded that “the district
court

properly

elements

of

looked

the

beyond

offense

to

the

fact

determine

of

conviction

whether

the

and

the

particular

offense of which Coleman was convicted was a violent felony.”
Id. at 202.

In particular, we affirmed the district court’s

consideration of the probable cause affidavit which set forth
facts

showing

that

“Coleman’s

offense

involved

the

use,

attempted use, or threatened use of physical force against the
victim.”

Id. at 203.
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And again, in 2006, we reaffirmed under Kirksey and Coleman
the propriety of looking past the fact of conviction and the
definition of the offense to determine if a Maryland assault
conviction was a violent felony under the ACCA.

See United

States v. Simms, 441 F.3d 313, 314 (4th Cir. 2006).

In Simms,

we concluded that the defendant’s Maryland assault conviction
constituted a violent felony for purposes of the ACCA based on
the information set forth in the charging papers.
317.

See id. at

We rejected the argument that the Supreme Court’s 2005

decision

in

Shepard

v.

undermined

Coleman

and

prohibited

consideration

United

States,

Kirksey
of

because

“police

applications,” Shepard, 544 U.S. at 16.
application

was

“explicitly

544

U.S.

Shepard

reports

13

(2005),

specifically
or

complaint

Because the victim’s

incorporated

into

Maryland’s

statement of charges against Simms,” Simms, 441 F.3d at 317, we
concluded that “Shepard does not call into question our prior
decisions” because “Shepard specifically allows reference to the
charging document,” id. at 318.
Even after 2007, this court continued to apply the modified
categorical approach to Maryland assault convictions in these
circumstances.

See United States v. Donnell, 661 F.3d 890, 893

(4th Cir. 2011); United States v. Taylor, 659 F.3d 339, 345-46
(4th Cir. 2011); United States v. Alston, 611 F.3d 219, 220-21
(4th Cir. 2010); United States v. Harcum, 587 F.3d 219, 224 (4th
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Cir. 2009).
of

this

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Harcum and Alston, in particular, are illustrative

court’s

long-established

approach.

In

Harcum,

the

defendant’s alleged predicate violent felony was a conviction
for second-degree assault in violation of Md. Code Ann., Crim.
Law §§ 3-201, -203.

We reiterated that an assault conviction

under § 3-201 is not a violent crime per se, and that “the
question of whether Harcum’s assault conviction was for [a] . .
. violent felony cannot be determined solely from the statutory
definition of the offense.”
applied

the

Information

modified
filed

587 F.3d at 224.

categorical

against

Harcum,

approach
which

Citing Simms, we
and

examined

ultimately

the

“lack[ed]

sufficient factual allegations to support classifying Harcum’s
second-degree assault offense as an ACCA violent felony.”
Similarly,
district

court

in

Alston,

properly

the

found

court
that

considered

the

Id.

whether

defendant’s

the

Maryland

conviction for second-degree assault, see Md. Code Ann., Crim.
Law § 3-203, was a “violent felony” under the ACCA when the
conviction was obtained via an Alford plea, see 611 F.3d at 222.
The court explained that the modified categorical approach was
necessary to resolve this question because “under Maryland law,
second-degree assault encompasses several distinct crimes, some
of which qualify as violent felonies and others of which do
not.”
144

Id. at 223; see Johnson v. United States, 559 U.S. 133,
(2010)

(noting

that

“[w]hen
23

the

law

under

which

the

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defendant

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has

been

convicted

Pg: 24 of 33

contains

statutory

phrases

that

cover several different generic crimes, some of which require
violent

force

and

some

of

which

do

not,

the

‘modified

categorical approach’ that we have approved permits a court to
determine

which

statutory

phrase

was

the

basis

for

the

conviction by consulting the trial record” (internal quotation
marks and citation omitted)).
Alston’s

conviction

district

court

proceeding.

was

relied

on

for
the

To support its conclusion that
a

violent

transcript

crime,
of

however,

the

Alford

plea

the

The court held that “Shepard prevents sentencing

courts from assessing whether a prior conviction counts as an
ACCA predicate conviction by relying on facts neither inherent
in the conviction nor admitted by the defendant,” 611 F.3d at
226, which is the case in the context of an Alford plea, wherein
“the defendant does not confirm [the proffered] factual basis,”
id. at 227 (internal quotation marks omitted).
Thus, it is clear that at the time of removal proceedings,
there was no question but that the modified categorical approach
applied.

The district court recognized as much, observing that

“in 2007 the Fourth Circuit applied the modified categorical
approach when called upon to analyze Maryland’s crime of seconddegree assault” pursuant to a “line of cases” that was “quite
substantial.”

Lopez-Collazo, 105 F. Supp. 3d at 521.

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2.
Lopez-Collazo’s Second Degree Assault Conviction Was
Properly Categorized as an Aggravated Felony Under the Modified
Categorical Approach Followed by Circuit Precedent in 2007
As detailed above, in 2007 this court would have used the
modified

categorical

approach

to

determine

if

Lopez-Collazo’s

conviction for second-degree assault in Maryland was a crime of
violence

since

the

Maryland

statute

“encompasses

several

distinct crimes, some of which qualify as violent felonies and
others of which do not.”

Alston, 611 F.3d at 223.

formal

expressly

charging

document

incorporated

Here, the

the

probable

cause affidavit which provided that Lopez-Collazo “attempted to
run down” law enforcement officers with his vehicle and kicked
and struck the officers several times as they were trying to
pull him from the vehicle and place him in handcuffs.
The

plea

colloquy

Accordingly,
understood

it
in

confirmed

is
2007,

clear

all

that,

of
under

Lopez-Collazo’s

these
the

facts
law

J.A. 60.
as

as

second-degree

well.
it

was

assault

conviction constituted a “crime of violence” as defined in 18
U.S.C. § 16(a) (“an offense that has as an element the use,
attempted use, or threatened use of physical force against the
person or property of another”), which, in turn, made it an
“aggravated felony” under the INA.

See 8 U.S.C. § 1101(43)(F).

And, as we noted previously, an illegal alien who has committed
an aggravated felony is amenable to expedited removal, see 8

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U.S.C.

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§

Filed: 06/01/2016

1228(b),

and

Pg: 26 of 33

ineligible

for

discretionary

forms

of

relief such as voluntary departure, see 8 U.S.C. § 1228(b)(5).
Accordingly, Lopez-Collazo cannot show that “there was a
reasonable probability that he would not have been deported.”
El Shami, 434 F.3d at 665.

Since Lopez-Collazo’s ability to

demonstrate prejudice hinges on his eligibility for voluntary
departure in 2007, see Ortiz-Lopez, 385 F.3d at 1204 n.1; 8
U.S.C. § 1326(a)(1) (applying to aliens who reenter after having
been previously removed or after having departed while a removal
order was outstanding), his case for “fundamental unfairness”
collapses “[b]ecause his deportation was a foregone conclusion”
at

that

States

time,
v.

Garcia-Martinez,

Lopez-Vasquez,

227

228

F.3d

F.3d
476,

at

963;

see

United

485

(5th

Cir.

2000)

(“[I]f the defendant was legally deportable and, despite the
INS’s errors, the proceeding could not have yielded a different
result, the deportation is valid for purposes of section 1326.”
(internal quotation marks omitted)).
3.
The District Court’s Application of Current Law to
Determine
Whether
Lopez-Collazo’s
State
Convictions
Were
Properly Categorized as Aggravated Felonies in 2007
Even
Collazo’s

though

the

conviction

district
qualified

court
as

an

recognized

that

aggravated

Lopez-

felony

under

existing law in 2007, it applied current law under Descamps to
the prejudice analysis.
premise

that

The government has not challenged the

Lopez-Collazo’s

assault
26

conviction

would

not

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constitute an “aggravated felony” under current law.
States

v.

Royal,

we

held

that,

under

In United

Descamps,

a

Maryland

second-degree assault offense is not amenable to the modified
categorical approach because it includes indivisible elements,
see 731 F.3d at 341-42, thus abrogating Harcum, Simms, Coleman
and Kirksey, see United States v. Aparicio-Soria, 740 F.3d 152,
156

(4th

Cir.

2014)

(en

banc).

Since

this

court

has

long

recognized that this offense is not categorically a crime of
violence, see Royal, 731 F.3d at 342, a conviction for seconddegree assault under Maryland law can no longer qualify as an
aggravated felony.
It is somewhat difficult to discern the district court’s
basis

for

Collazo

applying

would

procedural

current

not

defects

have
at

law

been

issue.

to

determine

removed
As

we

in

whether

2007

understand

Lopez-

but

for

the

the

district

court’s reasoning, it would assess “fundamental fairness . . .
under the law governing an alien’s removal at the time of the
removal

proceeding,”

Lopez-Collazo,

105

F.

Supp.

3d

at

523,

unless post-removal precedent later reveals that the prevailing
view of the law at the time of removal was erroneous.

According

to

to

the

Descamps

district

court,

‘retroactively,’

“it

would

because

[not]

be

Descamps

error
merely

apply

clarified

existing law. . . . [T]here has been no change in the applicable

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in

terms

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of

the

proper

Pg: 28 of 33

analysis

to

determine

whether

defendant’s prior State offenses were aggravated felonies.”
The

court’s

approach,

however,

impermissibly

Id.

disconnects

the prejudice analysis from the specific due process violation
identified by the court.
actual

prejudice

issue.

The defendant’s burden is to show that

resulted

from

the

due

process

violation

at

In this case, the specific due process violation at

issue was the failure to translate the NOI so that Lopez-Collazo
could

understand

the

charges

against

him

and

responsibilities during removal proceedings.

his

rights

and

Had the charges

and his rights been explained to Lopez-Collazo, he would have
had

the

opportunity

to

challenge

the

classification

of

his

assault conviction as an aggravated felony at the time of his
removal.

The

defect

in

the

removal

resulting prejudice must be linked.

proceedings

and

the

See Fernandez-Antonia, 278

F.3d at 159; Garcia-Martinez, 228 F.3d at 963.

There must be a

“reasonable probability” that if the proceedings had been errorfree, the defendant would have obtained relief from removal.
See El Shami, 434 F.3d at 665.

Logically, therefore, prejudice

under § 1326(d) must be “judged at the time of the [agency’s
removal] decision.”

United States v. Villanueva-Diaz, 634 F.3d

844, 852 (5th Cir. 2011).

As at least two Circuit Courts of

Appeal have recognized, this is so even if the law is later
changed:
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Under the law in effect at the time of his removal in
1998,
[defendant’s]
prior
possession
offenses
qualified as aggravated felonies.
See, e.g., Matter
of Yanez–Garcia, 23 I. & N. Dec. 390, 398 (BIA 2002)
(holding that felony possession qualifies as an
aggravated felony); Fernandez v. Mukasey, 544 F.3d
862, 874 (7th Cir. 2008) (holding that multiple state
possession convictions make an alien removable as an
aggravated felon).
Though the law has since changed
and
[defendant’s]
possession
offenses
no
longer
constitute aggravated felonies . . . , the law in
effect at the time of [defendant’s] challenged removal
is what matters to our analysis.
Since [defendant’s]
offenses constituted aggravated felonies in 1998, [he]
. . . could [not] . . . have applied for discretionary
relief . . . .
United States v. Baptist, 759 F.3d 690, 697-98 (7th Cir. 2014);
see

also

deciding

Gomez,

757

whether]

F.3d

at

defendant

898-99

(9th

2014)

the

[carried]

Cir.
burden

of

(“[In

proving

prejudice under § 1326(d)(3),” courts “look to the law at the
time of the deportation proceedings.”).
The

district

problematic

for

court’s

another

application

reason.

In

of

current

“applying

law

is

post-removal-

proceeding precedent to determine whether [the] prior entry of a
removal order [against Lopez-Collazo] was fundamentally unfair,”
Lopez-Collazo,

105

F.

Supp.

3d

at

525,

the

district

court

implicitly determined that the categorization of Lopez-Collazo’s
assault

conviction

as

an

aggravated

felony

was

itself

a

due

process violation, independent from the failure to translate the
NOI to Lopez-Collazo.

Indeed, Lopez-Collazo argues that the

district court properly dismissed the indictment “because ICE

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officers misapplied the law” by administratively removing him
“for having aggravated felony convictions” which “depriv[ed] him
of the opportunity to obtain voluntary departure.”

Brief of

Appellee at 17.
Although an error of law, without more, “will ordinarily
not rise to the level of a due process violation,” United States
v. Torres, 383 F.3d 92, 104 (3d Cir. 2004), there might be
circumstances
misapplication

under
of

which

the

law

some
as

courts
it

would

existed

at

conclude
the

that

time—not

a
as

understood in light of subsequent judicial decisions—led to a
due process violation, see United States v. Pallares-Galan, 359
F.3d 1088, 1100-01 (9th Cir. 2004).

Under such circumstances,

it might be possible for the court to conclude that “but for”
the misapprehension of the law, defendant would not have been
removed.

But even these courts do not require the agency to be

clairvoyant, “inform[ing] the alien of a future interpretation
of the law” regarding “what the meaning of the law always was in
some theoretical way.”
1012,

1018-19

(9th

United States v. Vidal-Mendoza, 705 F.3d
Cir.

2013)

(internal

quotation

marks

omitted).
But

in

Lopez-Collazo’s

misapplication

of

the

administrative

removal

law
order

case,
as
was

it

stood

actually

faithful application of existing law.
30

there

was
in

no

2007.

premised

such
The

on

the

Under the law as it was

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understood at the time of Lopez-Collazo’s removal, he cannot
have

suffered

prejudice

because

he

was

understood

to

be

statutorily ineligible for relief from removal, and therefore
there was no reasonable probability that he would not have been
deported.
III.
For the foregoing reasons, we conclude that Lopez-Collazo
failed to establish that his order of removal was “fundamentally
unfair” under § 1326(d).

Accordingly, we reverse the order of

the district court dismissing the indictment and remand the case
with instructions that the indictment be reinstated.
REVERSED AND REMANDED

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GREGORY, Circuit Judge, dissenting:
I

write

misapplication

only
of

to
the

address
law,

as

the
we

question

now

of

whether

understand

it,

constitute a due process violation that causes prejudice.

can

In my

view, it can, and I would affirm on that basis.
As the majority recognizes, “a conviction for second-degree
assault

under

Maryland

aggravated felony.”

law

can

no

Maj. Op. 27.

longer

qualify

as

an

Nevertheless, “[a] judicial

construction of a statute is an authoritative statement of what
the statute meant before as well as after the decision of the
case giving rise to that construction.”

Rivers v. Roadway Exp.,

Inc., 511 U.S. 298, 312-13 (1994).

Thus, our decision in United

States

(4th

v.

“change[]”

Royal,
the

731

F.3d

meaning
we

of

333

Maryland’s

decided

what

the

Cir.

did

second-degree

offense;

instead,

meant.”

See Rivers, 511 U.S. at 313 n.12.

would constitute a due process violation.

2013),

statute

not

assault

“had

always

And misapplication
See United States v.

Pallares-Galan, 359 F.3d 1088, 1100-01 (9th Cir. 2004).
As we have seen in recent decisions, the Supreme Court has
questioned

the

constitutionality

crime mentality.

of

a

decades-long

tough-on-

E.g., Johnson v. United States, 135 S. Ct.

2551 (2015); Miller v. Alabama, 132 S. Ct. 2455 (2012).
Court

is

decisions

also
have

concerned
on

those

with
who

the

were
32

implications
convicted

under

The

that

such

the

“old

Appeal: 15-4312

Doc: 51

rules.”

Filed: 06/01/2016

Pg: 33 of 33

E.g., Welch v. United States, 136 S. Ct. 1257 (2016);

Montgomery v. Louisiana, 136 S. Ct. 718 (2016), as revised (Jan.
27, 2016).
“A man should never be ashamed to own he has been in the
wrong, which is but saying, in other words, that he is wiser today than he was yesterday.”

Alexander Pope, Thoughts on Various

Subjects, reprinted in 5 Alexander Pope & William Roscoe, The
Works of Alexander Pope, Esq. 377, 378 (1847).
entitled

to

the

constitutional

protections

Although equally
of

due

process,

Lopez-Collazo had the unfortunate fate of being sentenced in our
“yesterday” in a way we now know to be improper.

We should not

leave him to suffer given our enlightenment today.
Accordingly, I would affirm the district court.

33