United States v. Yan Naing, 820 F.3d 1006

Defendant Yan Naing, a Burmese refugee, pleaded guilty to failing to depart under 8 U.S.C. § 1253(a)(1)(B) after an immigration judge (IJ) and the Board of Immigration Appeals (BIA) found him removable based on a Kansas aggravated-intimidation conviction the government treated as an aggravated felony.
Naing did not pursue further administrative or judicial review after the BIA dismissed his appeal and failed to obtain required travel documents for deportation, prompting the criminal indictment.
Naing moved to dismiss the indictment, arguing the underlying removal order was invalid due to multiple due-process errors in the immigration proceedings (counsel waiver, notice of right to judicial review, and lack of translated evidence), and sought to raise a coercion defense at trial.
The district court denied the motion to dismiss and granted the government’s motion in limine excluding the coercion defense and related expert testimony.
The Eighth Circuit reviewed the due-process claims de novo and the legal sufficiency of the coerced-defense exclusion de novo, and affirmed the district court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of removal order based on alleged IJ/BIA due-process errors	Naing: IJ failed to obtain an affirmative waiver of counsel; IJ/BIA did not advise him of right to judicial review; lacked translated evidence — so removal order invalid	Government: IJ complied with counsel notice and gave time; statements about appeal referred to BIA; any error caused no prejudice because Naing forfeited key claims	Affirmed: No fundamental procedural error or prejudice; removal order stands under any standard
Waiver of counsel	Naing: IJ should have elicited an affirmative waiver at second hearing	Government: IJ repeatedly informed Naing and gave five weeks; Naing signaled no further need for counsel	Affirmed: Circumstances supported implied waiver; no due-process violation
Failure to advise of right to judicial review	Naing: IJ/BIA did not advise him of right to seek federal judicial review	Government: IJ’s comments referred to BIA appeal; even if not, Naing suffered no prejudice because he forfeited the only potentially meritorious issue by not raising it to BIA	Affirmed: No prejudice, so claim fails
Exclusion of coercion defense	Naing: Coercion justified his failure to procure travel documents; expert testimony needed	Government: Naing had reasonable legal alternatives (reopen/reconsider, petition court, designate another country)	Affirmed: Insufficient evidentiary foundation for coercion defense; exclusion proper

Bracic v. Holder, 603 F.3d 1027 (8th Cir. 2010) (standard for showing prejudice from procedural errors in immigration proceedings)
United States v. Santos-Vanegas, 878 F.2d 247 (8th Cir. 1989) (failure to advise of judicial-review rights ordinarily precludes use of removal as criminal predicate absent prejudice)
United States v. Loaisiga, 104 F.3d 484 (1st Cir. 1997) (circumstances can support implied waiver of counsel in immigration hearings)
United States v. Diaz, 736 F.3d 1143 (8th Cir. 2013) (requirements for evidentiary foundation to submit affirmative defenses to jury)
United States v. Hudson, 414 F.3d 931 (8th Cir. 2005) (defendant entitled to jury instruction only if evidence supports each element of affirmative defense)
United States v. Andrade-Rodriguez, 531 F.3d 721 (8th Cir. 2008) (review standard for exclusion of affirmative-defense testimony where defense legally insufficient)
Ming Ming Wijono v. Gonzalez, 439 F.3d 868 (8th Cir. 2006) (issues not raised before BIA are forfeited and generally not cognizable on direct judicial review)
United States v. Ayeni, 66 F. Supp. 2d 617 (M.D. Pa. 1999) (discussing collateral-attack standards in analogous immigration contexts)