United States v. Sanchez

46 F.4th 211

UNITED STATES of America, Plaintiff - Appellant,

v.Bonifacio FERNANDEZ SANCHEZ, Defendant - Appellee.

No. 20-4061

United States Court of Appeals, Fourth Circuit.

Argued: May 4, 2022

Decided: August 23, 2022

ARGUED: Laura Day Taylor, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellant. Erin Margaret Trodden, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Harrisonburg, Virginia, for Appellee. ON BRIEF: Thomas T. Cullen, United States Attorney, Christopher R. Kavanaugh, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellant. Juval O. Scott, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellee.

Before GREGORY, Chief Judge, and MOTZ and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Chief Judge Gregory and Judge Motz joined.

WYNN, Circuit Judge:

Bonifacio Fernandez Sanchez, a Mexican citizen who migrated to the United States illegally as a minor in 2006, was deported in 2011 following a four-minute removal hearing. During that hearing, the immigration judge neglected to advise Fernandez Sanchez about his eligibility for voluntary departure or inform him of his right to appeal. Then, in his written summary order, the immigration judge indicated that Fernandez Sanchez had waived his right to appeal—even though this was never discussed during the hearing.

In the years since, Fernandez Sanchez has returned to the United States and been deported multiple times. Upon discovering him in the country once again in 2018, the Government opted to arrest and charge him with illegal reentry in violation of 8 U.S.C. § 1326(a). Fernandez Sanchez moved to dismiss his indictment, arguing that the 2011 deportation order underlying his § 1326 charge was invalid.

The district court agreed, finding that the immigration judge's failure to advise Fernandez Sanchez regarding his eligibility for voluntary departure rendered his 2011 removal fundamentally unfair. However, while this appeal was pending, we effectively rejected the district court's reasoning in United States v. Herrera-Pagoada , 14 F.4th 311 (4th Cir. 2021). Fernandez Sanchez nevertheless maintains that the district court's decision must be affirmed on an alternative basis: that the immigration judge's denial of his right to appeal also prejudiced him. We agree, and therefore affirm the dismissal of Fernandez Sanchez's indictment.

I.

The following facts are undisputed. Fernandez Sanchez is a native and citizen of Mexico who first entered the United States as a minor in 2006. While residing here, Fernandez Sanchez started a family and fathered two children, both of whom are U.S. citizens.

In 2010, Fernandez Sanchez was arrested for driving under the influence. The police department referred him to U.S. Immigration and Customs Enforcement ("ICE"). While he was in ICE custody, the Government served him with a Notice to Appear before an immigration judge, alleging that he had entered the country without being admitted or paroled following an inspection by an immigration officer. Instead of admitting he was in the United States illegally, Fernandez Sanchez requested a hearing before an immigration judge. The hearing took place on June 30, 2011.

At that hearing, the immigration judge failed to abide by several procedural requirements. See 8 C.F.R. § 1240.10(a) (2011). For example, the immigration judge did not advise Fernandez Sanchez of his "right to representation" and the availability of pro bono legal services, or ensure that Fernandez Sanchez received a list of local pro bono legal service providers. Id. § 1240.10(a)(1)–(3) (2011). The immigration judge also did not explain "the factual allegations and the charges in the notice to appear" to Fernandez Sanchez in "non-technical language"; advise him that he would "have a reasonable opportunity to examine and object to the evidence against him" and "to present evidence" on his own behalf; or place him "under oath." Id. § 1240.10(a)(4)–(6) (2011). Nor did the immigration judge inform Fernandez Sanchez of his right to appeal.¹ See 8 U.S.C. § 1229a(c)(5) (2011) (stating the immigration "judge shall inform the [noncitizen] of the right to appeal [an adverse] decision" (emphasis added)); 8 C.F.R. § 1240.10(a)(3) (2011) (requiring the judge to "[a]scertain" that the noncitizen has received "a copy of appeal rights"); 8 C.F.R. § 1240.13(d) (2011) (requiring an immigration judge to advise a removable noncitizen of their right to appeal to the Board of Immigration Appeals).

Instead, at the hearing—which lasted just over four minutes—the immigration judge started by asking Fernandez Sanchez via an interpreter whether he had an attorney. When Fernandez Sanchez responded he did not, the judge asked whether he "wish[ed] to find an attorney and contest the case, or [whether he] wish[ed] to return home to Mexico." J.A. 128 (audio recording).² Fernandez Sanchez—who conceded that he had entered the country illegally in 2006—replied that he would return to Mexico. But in response to further questions, Fernandez Sanchez stated that while he was not afraid to return to Mexico, he wished to remain in the United States because his children (who are U.S. citizens) and their mother all live here. He also emphasized that he had been "taking care of [his children] since they were born." J.A. 128.

The immigration judge then asked whether Fernandez Sanchez had "the money to pay [for his] ticket to go back to Mexico." J.A. 128. In response, Fernandez Sanchez stated that he did not want to be deported.³ He also noted that he did not have the money to pay for a ticket at that time because his money went toward supporting his children. Without any further investigation, the immigration judge then summarily ordered Fernandez Sanchez to be deported to Mexico and closed the hearing.

Following the hearing, the immigration judge memorialized his removal decision in a written form order. That order is supposed to be merely "a summary of the oral decision" entered at Fernandez Sanchez's hearing. J.A. 30; see also id. (stating that in the event of an appeal "the oral decision will become the official opinion in the case"). However, although neither the right to appeal nor any waiver of that right was discussed at the hearing, the immigration judge indicated on the written form order that Fernandez Sanchez had "[w]aived" his right to appeal. J.A. 30.

Normally, a noncitizen has thirty days to file an appeal of a removal decision. 8 C.F.R. §§ 1003.38(b), 1240.15 (2011). During this time period, the noncitizen generally may not be removed unless they waive their right to appeal. Id. § 1003.6(a) (2011). Since Fernandez Sanchez's order indicated he had waived his appellate rights, however, he was removed twenty-two days after his hearing on July 22, 2011.

Fernandez Sanchez was found again in the United States in January and February 2013. On both occasions, immigration authorities reinstated his 2011 deportation order, Fernandez Sanchez declined to contest their determinations, and he was subsequently removed.

Five years later, Fernandez Sanchez was arrested once more for driving under the influence. After he was transferred to ICE custody, a grand jury indicted him on one count of illegal reentry in violation of 8 U.S.C. § 1326(a). That section provides that "any [noncitizen] who ... has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter ... enters, attempts to enter, or is at any time found in, the United States, ... shall be fined ..., or imprisoned not more than 2 years, or both," with certain exceptions not applicable here. 8 U.S.C. § 1326(a) (2018).

Fernandez Sanchez moved to dismiss the indictment by collaterally attacking the underlying 2011 removal order pursuant to 8 U.S.C. § 1326(d).⁴ Under that provision, Fernandez Sanchez was required to show that (1) he exhausted his administrative remedies, (2) he was denied the opportunity for judicial review, and (3) his removal was fundamentally unfair, meaning the immigration judge violated his due-process rights in a way that actually prejudiced him. United States v. El Shami , 434 F.3d 659, 663–65 (4th Cir. 2005) (citing 8 U.S.C. § 1326(d) ).

Fernandez Sanchez's motion claimed that the immigration judge's failure to inform him of his right to appeal satisfied the first two prongs. As for the third prong, his argument largely focused on a separate removal-hearing regulation that requires an immigration judge to "inform the [noncitizen] of his or her apparent eligibility to apply for" relief from removal and "afford the [noncitizen] an opportunity to make application [for such relief] during the hearing." 8 C.F.R. § 1240.11(a)(2) (2011). According to Fernandez Sanchez, the immigration judge shirked this duty when he failed to adequately inform Fernandez Sanchez of his potential eligibility for "[s]o-called ‘pre-conclusion voluntary departure.’ "⁵ Narine v. Holder , 559 F.3d 246, 248 n.1 (4th Cir. 2009).

The district court agreed. The court accepted Fernandez Sanchez's logic that the immigration judge's failure to inform him of the right to appeal satisfied the first two prongs of the § 1326(d) analysis. As for the third prong, the court concluded that the immigration judge's "failure to apprise [Fernandez Sanchez] of his potential eligibility for pre-conclusion voluntary departure violated his due process rights." United States v. Fernandez Sanchez , No. 3:18-CR-00022, 2019 WL 7041513, at *5 (W.D. Va. Dec. 20, 2019). And the court further concluded that this failure prejudiced Fernandez Sanchez because there was "a reasonable probability that he would have received voluntary departure had he been advised of it." Id. Having found that Fernandez Sanchez could satisfy all three prongs of § 1326(d) and therefore could successfully collaterally attack the underlying 2011...