United States v. Lopez-Collazo

824 F.3d 453

United States of America, Plaintiff–Appellant

v.Agustin Lopez–Collazo, a/k/a Agustin Martinez–Lopez, a/k/a Agustin Lopez, Defendant–Appellee.

No. 15-4312

United States Court of Appeals, Fourth Circuit.

Argued: December 9, 2015

Decided: June 1, 2016

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.

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.

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 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 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 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).

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, 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 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...