United States v. Lopez-Collazo, 105 F. Supp. 3d 497

Background

Lopez-Collazo, a Mexican national who speaks Spanish, was convicted in Maryland of (1) Theft under $500 (plea in 2005) and (2) Second‑Degree Assault (plea in 2007); both pleas involved use of a Spanish interpreter in state court.
While in state custody in 2007 ICE served a Notice of Intent to Issue a Final Administrative Removal Order (NOI) and a Waiver form (in English); Lopez‑Collazo signed the waiver the same day and was removed to Mexico in November 2007.
He reentered the U.S. without inspection between 2007 and 2014 and was arrested in 2014; a federal indictment charged illegal reentry under 8 U.S.C. § 1326(a) & (b)(2).
In a collateral attack under 8 U.S.C. § 1326(d), Lopez‑Collazo argued his removal order is invalid because (a) his waiver was not knowing and intelligent (forms were in English and he spoke little English), (b) his convictions were mischaracterized as aggravated felonies, and (c) he was denied meaningful opportunity to be heard and prejudice resulted (likely voluntary departure if properly informed).
The Government failed to prove the waiver was knowing and intelligent (did not call the serving officer; conceded language issue at hearing). The court found the waiver invalid, that Lopez‑Collazo was deprived of judicial review and due process, and that he suffered prejudice (reasonable probability he would have obtained voluntary departure). The indictment was dismissed.

Issues

Issue	Lopez‑Collazo’s Argument	Government’s Argument	Held
Whether defendant exhausted administrative remedies and was deprived of judicial review under 8 U.S.C. § 1326(d)(1)–(2)	Waiver of appeal/administrative remedies was not knowing/intelligent because NOI and waiver were in English and he spoke little English; thus exhaustion is excused and he was deprived of judicial review	Waiver was valid; administrative avenues and right to judicial review existed and could have been pursued	Waiver found invalid; exhaustion excused and deprivation of judicial review established
Whether the removal proceeding was fundamentally unfair under § 1326(d)(3) (due process violation)	Removal was premised on misclassification of state convictions as aggravated felonies; proceedings were conducted in a language he did not understand; he lacked meaningful opportunity to be heard	Even if some defects existed, defendant was removable regardless (entered without inspection) and/or post‑2007 precedent cannot be applied retroactively to show misclassification	Court found due process violation: no meaningful opportunity to be heard (language barrier, unknowing waiver)
Whether defendant suffered prejudice (reasonable probability of different outcome)	But for the defects, there was a reasonable probability he would have obtained pre‑order voluntary departure (avoiding a removal order and later § 1326 exposure)	Even if not removable “as charged,” he would have been removed anyway for illegal entry; it was not plausible immigration judge would grant voluntary departure	Court concluded prejudice established: reasonable probability IJ would have granted voluntary departure given the equities
Whether later precedents (e.g., Descamps and Taylor line) may be applied to assess whether prior convictions were aggravated felonies for § 1326(d) purposes	Post‑removal clarifying decisions (Descamps, Taylor/Shepard framework) clarify what the law always meant and may be applied to evaluate the 2007 removability and fundamental fairness	Applying post‑2007 clarifications retroactively is improper; one should evaluate under law as applied in 2007	Court applied the clarified categorical approach (Descamps/Taylor/Shepard reasoning) and found the Maryland convictions did not constitute aggravated felonies at the time of removal

Key Cases Cited

Mendoza‑Lopez v. United States, 481 U.S. 828 (due process requires meaningful review of deportation proceedings used to support criminal reentry charge)
El Shami v. United States, 434 F.3d 659 (4th Cir.) (§ 1326(d) collateral attack: deprivation of meaningful opportunity to be heard can invalidate prior removal)
Descamps v. United States, 133 S. Ct. 2276 (statutory‑interpretation clarification of when to use modified categorical approach)
Taylor v. United States, 495 U.S. 575 (categorical approach framework for determining whether state offense qualifies as federal predicate)
Shepard v. United States, 544 U.S. 13 (permissible documents for modified categorical inquiry)
United States v. Wilson, 316 F.3d 506 (4th Cir.) (elements for § 1326(d): exhaustion, deprivation of judicial review, fundamental unfairness)