United States v. Agustin Lopez-Collazo, 2016 U.S. App. LEXIS 9910

Background

In 2007 DHS placed Agustín Lopez‑Collazo, a native Spanish speaker, in expedited removal after Maryland convictions including second‑degree assault (2007) and a 2005 theft offense; he signed an English NOI waiver and was removed to Mexico.
DHS did not provide a Spanish translation or interpreter for the Notice of Intent (NOI) or the waiver; the officer explained the form in English though Lopez‑Collazo had very limited English.
Lopez‑Collazo promptly reentered the U.S. and was indicted in 2014 for illegal reentry under 8 U.S.C. § 1326(a), (b)(2).
He moved to dismiss under 8 U.S.C. § 1326(d), collaterally attacking the 2007 removal order on due process grounds (no translation) and arguing prejudice because under current law his assault conviction would not be an aggravated felony and he could have obtained voluntary departure.
The district court found the waiver invalid (no meaningful understanding), excused exhaustion, held the removal was fundamentally unfair, and dismissed the indictment; the Fourth Circuit reversed, holding Lopez‑Collazo failed to prove prejudice because, under the law as understood in 2007, his assault conviction qualified as an aggravated felony and he was ineligible for voluntary departure.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether DHS’s failure to provide Spanish translation violated due process	Lopez‑Collazo: lack of translation deprived him of meaningful opportunity to be heard and rendered waiver invalid	Government: DHS regulations require translation or explanation; government conceded failure, but disputed resulting prejudice	Court: Due process violated — DHS failed to translate/comply with its regulation, so first prong satisfied
Whether waiver/ exhaustion requirement nevertheless bars collateral attack	Lopez‑Collazo: waiver invalid because he did not understand English; exhaustion excused	Government: NOI waiver precludes exhaustion; but government did not contest waiver invalidity on appeal	Court: Waiver invalid; exhaustion and deprivation of judicial review excused for purposes of appeal
Whether removal order was "fundamentally unfair" (prejudice) because he would likely have avoided removal	Lopez‑Collazo: but for lack of translation, he would have challenged aggravated‑felony classification and obtained voluntary departure under current law	Government: Prejudice judged by law as of 2007; under then‑controlling Fourth Circuit precedent his assault was an aggravated felony and he was ineligible for voluntary departure	Court: Held no prejudice — prejudice must be assessed under law at time of removal; in 2007 the modified categorical approach applied and facts showed the assault was a crime of violence, so deportation was inevitable
Whether post‑removal change in law (Descamps/Royal) allows retroactive relief	Lopez‑Collazo: later decisions show assault is not an aggravated felony, so removal was wrong and prejudicial	Government: Agencies and courts are not required to foresee later doctrinal changes; prejudice evaluated under contemporaneous law	Court: Post‑removal developments do not create the requisite link between the procedural error and a reasonable probability of a different result in 2007; dismissal reversed

Key Cases Cited

Zadvydas v. Davis, 533 U.S. 678 (Due Process applies to aliens within U.S.)
Kwong Hai Chew v. Colding, 344 U.S. 590 (Alien entitled to notice and hearing before expulsion)
Shepard v. United States, 544 U.S. 13 (Limits on documents usable under the modified categorical approach)
El Shami v. United States, 434 F.3d 659 (Fourth Circuit standard for § 1326(d) fundamental unfairness and prejudice)
Descamps v. United States, 570 U.S. 254 (Clarified limits of modified categorical approach)
United States v. Royal, 731 F.3d 333 (Fourth Circuit applying Descamps to Maryland second‑degree assault)
United States v. Villanueva‑Diaz, 634 F.3d 844 (Prejudice under § 1326(d) judged at time of deportation)