United States v. Agustin Lopez-Collazo

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 Decided: June 1, 2016
Before TRAXLER, Chief Judge, and GREGORY and DIAZ, Circuit
Judges.
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.
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.” See 8 U.S.C. §
1228(b). Lopez-Collazo did not contest 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 under § 1326(d), concluding that the underlying
removal order was invalid because DHS failed to 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 Spanish-
language translation of the removal charges and his right to
2
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 the order of the district court dismissing the
indictment. 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. See Md. Code Ann., Crim. Law
§ 7-104. 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. See 8
U.S.C. § 1228(b)(1), (2), (4); 8 C.F.R. § 238.1. Expedited
3
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 to standard removal proceedings, expedited
removal proceedings do not involve a hearing before an
immigration judge. Rather, a DHS immigration officer determines
whether the alien is removable as an “aggravated felon[]” under
8 U.S.C. § 1227(a)(2)(A)(iii), and, upon finding the alien
removable “by clear, convincing, and unequivocal 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 from receiving any form of
1 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.
4
discretionary relief”). 2 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 Lopez-
Collazo in expedited removal proceedings. ICE agents prepared a
Form I-851 Notice of Intent to Issue 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 felonies under 8 U.S.C. §
1227(a)(2)(A)(iii). More specifically, the Government charged
that the 2007 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.
5
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. An immigration officer personally
served Lopez-Collazo with 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,
6
several possible bases for the alien to contest removal. The
third box states, “I DO NOT WISH TO CONTEST.” 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 almost immediately, unlawfully
crossing into Arizona in July 2008. Authorities did not
discover Lopez-Collazo until 2014, when he was arrested in
Maryland for driving under the influence and for resisting
arrest. This time, however, rather than placing him in removal
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 § 1326(d) to Dismiss His
Indictment for Illegal Reentry
Lopez-Collazo moved to dismiss the indictment, claiming
that it was based on an invalid removal order. See 8 U.S.C. §
1326(d). Under § 1326(d), a defendant charged with illegal
reentry is permitted to collaterally attack a prior removal
7
order. 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). When the defendant satisfies all of §
1326(d)’s requirements, the district court must dismiss the
illegal reentry charge. 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), that he was improperly deprived of
judicial review. 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). See 8 U.S.C. §
1228(b)(3). In response, Lopez-Collazo, a native Spanish
speaker who understood almost no English, argued that the waiver
was invalid because neither the charges nor the waiver language
8
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 Lopez-
Collazo 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 to show that he exhausted available
administrative remedies” and “suffices to show that the
deportation proceedings improperly deprived him of the
opportunity for judicial review.” Lopez-Collazo, 105 F. Supp.
3d at 513. Accordingly, for purposes of this appeal, the first
two requirements of § 1326(d) were satisfied by Lopez-Collazo,
9
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 removable as charged. Second, Lopez-Collazo
contended that because his offenses were 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, cannot be a predicate for an
illegal reentry conviction. 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 removal, because he would never have been
removed.”). Finally, Lopez-Collazo argued that the 2007 removal
order was “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
10
departure or otherwise challenge his removal order. In
response, the government argued that 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
11
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, the district court considered whether Lopez-
Collazo suffered any prejudice, correctly 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.’” Id. at 518 (quoting El Shami, 434 F.3d at 665).
The 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. The
district court explained that, “although Lopez-Collazo 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. The district
12
court held that under current law, Lopez-Collazo’s Maryland
assault conviction did not constitute an aggravated felony and
that Lopez-Collazo therefore had been eligible for voluntary
departure. Accordingly, the court granted Lopez-Collazo’s
motion and dismissed the indictment.
The government appeals the district court’s order and seeks
reinstatement of the indictment. In considering the district
court’s grant of a motion 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 our attention on the fundamental fairness
requirement of § 1326(d). “To demonstrate 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, or permanent.” Zadvydas v.
13
Davis, 533 U.S. 678, 693 (2001); see Shaughnessy v. United
States ex rel. Mezei, 345 U.S. 206, 212 (1953) (“[A]liens who
have once passed through our gates, even illegally, may be
expelled only after proceedings conforming to 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 least before an executive or administrative
tribunal.” Kwong Hai Chew v. Colding, 344 U.S. 590, 596-97
(1953). 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
3The 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
removal is entitled to “the opportunity to be heard at a
meaningful time and in a meaningful manner.” 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. “A non-English-speaking alien has a due process
right to an interpreter at her deportation hearing because,
absent an interpreter, a non-English speaker’s ability to
participate in the hearing and her due process right 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 alien and
decision-maker could not understand each other. See Marincas,
92 F.3d at 204.
The district court concluded that Lopez-Collazo was denied
an “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), based on “abundant evidence that . . .
Lopez-Collazo required translation assistance in order to
understand the NOI, the Waiver, and legal proceedings,” Lopez-
15
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 proceedings defective and abridged his due process
rights. Accordingly, we turn to the prejudice inquiry. See
16
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. Prejudice
To establish fundamental unfairness under § 1326(d), a
defendant must show that he suffered actual prejudice as 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.”). For Lopez-Collazo to meet the actual prejudice
requirement, he must demonstrate “that, but for the errors
complained of, there was a reasonable probability that he would
not have been deported.” Id. This is not a generalized showing
of prejudice; rather, the 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)).
17
The district court 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 charges and obtain legal counsel—“there was a
reasonable probability that Lopez-Collazo would have been
granted voluntary departure, . . . thereby avoiding deportation”
and prosecution under § 1326. Lopez-Collazo, 105 F. Supp. 3d at
530-31. 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. Id. at 530.
We cannot agree. 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
18
“When the Government 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.” Id. at 1685 (quoting 8 U.S.C. §
1227(a)(2)(A)(iii)). An alien’s actual conduct is irrelevant to
the inquiry, as 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
19
whether an offense constitutes a violent felony. See Taylor v.
United States, 495 U.S. 575, 602 (1990). This “modified
categorical approach,” applies to “state statutes that contain
several different crimes, each described separately.”
Moncrieffe, 133 S. Ct. at 1684. 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 Maryland
assault conviction constituted a violent crime. In 1998, we
considered whether a conviction for common 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). We
concluded that a Maryland assault conviction was not
categorically a crime of violence because “an assault 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 quotation marks omitted).
20
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 looked beyond the fact of conviction and the
elements of the offense to determine whether 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.
21
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. See id. at
317. We rejected the argument that the Supreme Court’s 2005
decision in Shepard v. United States, 544 U.S. 13 (2005),
undermined Coleman and Kirksey because Shepard specifically
prohibited consideration of “police reports or complaint
applications,” Shepard, 544 U.S. at 16. Because the victim’s
application was “explicitly 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
22
Cir. 2009). Harcum and Alston, in particular, are illustrative
of this 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.” 587 F.3d at 224. Citing Simms, we
applied the modified categorical approach and examined the
Information filed against Harcum, which ultimately “lack[ed]
sufficient factual allegations to support classifying Harcum’s
second-degree assault offense as an ACCA violent felony.” Id.
Similarly, in Alston, the court considered whether the
district court properly found that the defendant’s 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.” Id. at 223; see Johnson v. United States, 559 U.S. 133,
144 (2010) (noting that “[w]hen the law under which the
23
defendant has been convicted 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)). To support its conclusion that
Alston’s conviction was for a violent crime, however, the
district court relied on the transcript of the Alford plea
proceeding. 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 second-
degree assault” pursuant to a “line of cases” that was “quite
substantial.” Lopez-Collazo, 105 F. Supp. 3d at 521.
24
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. Here, the
formal charging document expressly incorporated 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. J.A. 60.
The plea colloquy confirmed all of these facts as well.
Accordingly, it is clear that, under the law as it was
understood in 2007, Lopez-Collazo’s second-degree 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
25
U.S.C. § 1228(b), and 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 time, Garcia-Martinez, 228 F.3d at 963; see United
States v. Lopez-Vasquez, 227 F.3d 476, 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 though the district court recognized that Lopez-
Collazo’s conviction qualified as an aggravated felony under
existing law in 2007, it applied current law under Descamps to
the prejudice analysis. The government has not challenged the
premise that Lopez-Collazo’s assault conviction would not
26
constitute an “aggravated felony” under current law. In United
States v. Royal, we held that, under 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 second-
degree assault under Maryland law can no longer qualify as an
aggravated felony.
It is somewhat difficult to discern the district court’s
basis for applying current law to determine whether Lopez-
Collazo would not have been removed in 2007 but for the
procedural defects at issue. As we understand 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 the district court, “it would [not] be error to apply
Descamps ‘retroactively,’ because Descamps merely clarified
existing law. . . . [T]here has been no change in the applicable
27
law in terms of the proper analysis to determine whether
defendant’s prior State offenses were aggravated felonies.” Id.
The court’s approach, however, impermissibly disconnects
the prejudice analysis from the specific due process violation
identified by the court. The defendant’s burden is to show that
actual prejudice resulted from the due process violation at
issue. 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 his rights and
responsibilities during removal proceedings. 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 proceedings and the
resulting prejudice must be linked. 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 error-
free, 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:
28
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 Gomez, 757 F.3d at 898-99 (9th Cir. 2014) (“[In
deciding whether] defendant [carried] the burden of proving
prejudice under § 1326(d)(3),” courts “look to the law at the
time of the deportation proceedings.”).
The district court’s application of current law is
problematic for another reason. In “applying 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
29
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 under which some courts would conclude that a
misapplication of the law as it existed at the time—not 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.” United States v. Vidal-Mendoza, 705 F.3d
1012, 1018-19 (9th Cir. 2013) (internal quotation marks
omitted).
But in Lopez-Collazo’s case, there was no such
misapplication of the law as it stood in 2007. The
administrative removal order was actually premised on the
faithful application of existing law. Under the law as it was
30
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
31
GREGORY, Circuit Judge, dissenting:
I write only to address the question of whether
misapplication of the law, as we now understand it, can
constitute a due process violation that causes prejudice. In my
view, it can, and I would affirm on that basis.
As the majority recognizes, “a conviction for second-degree
assault under Maryland law can no longer qualify as an
aggravated felony.” Maj. Op. 27. 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 v. Royal, 731 F.3d 333 (4th Cir. 2013), did not
“change[]” the meaning of Maryland’s second-degree assault
offense; instead, we decided what the statute “had always
meant.” See Rivers, 511 U.S. at 313 n.12. And misapplication
would constitute a due process violation. 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 of a decades-long tough-on-
crime mentality. E.g., Johnson v. United States, 135 S. Ct.
2551 (2015); Miller v. Alabama, 132 S. Ct. 2455 (2012). The
Court is also concerned with the implications that such
decisions have on those who were convicted under the “old
32
rules.” 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 to-
day 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). Although equally
entitled to the constitutional protections 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