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
824 F.3d 453
While I could call for a poll of the court in an effort to require counsel to reargue their positions before an en banc court, the momentous nature of the issue deserves an open road to the Supreme Court to seek the Court‘s controlling construction of Title IX for national application. And the facts of this case, in particular, are especially “clean,” such as to enable the Court to address the issue without the distraction of subservient issues. For this reason only and not because the issue is not sufficiently weighty for our en banc court, I am not requesting a poll on the petition for rehearing en banc. I do, however, vote to grant panel rehearing, which I recognize can only be symbolic in view of the majority‘s approach, which deferred to the Administration‘s novel position with a questionable application of Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). Time is of the essence, and I can only urge the parties to seek Supreme Court review.
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
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
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
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
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 . . . .
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
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
The government argued that Lopez-Collazo could not satisfy
The district court found it “patently clear” that Lopez-Collazo in 2007 “did not read or understand English to an extent sufficient to enable him to comprehend the NOI or the Waiver form, which were written in English, or to make a knowing and informed decision on the basis of forms that he could not read.” Lopez-Collazo, 105 F.Supp.3d at 512. Thus, the district court concluded that Lopez-Collazo‘s waiver was invalid.
Once the district court determined that the waiver was invalid, it concluded in turn that Lopez-Collazo was excused from having to show that he had exhausted his administrative remedies and that he had been deprived of judicial review, following an approach embraced by some appellate courts. See, e.g., United States v. Reyes-Bonilla, 671 F.3d 1036, 1045 (9th Cir. 2012); United States v. Sosa, 387 F.3d 131, 136-38 (2d Cir. 2004). The government does not contest the district court‘s ruling that the waiver was invalid or that the “invalid waiver excuses his burden to show that he exhausted available administrative remedies” and “suffices to show that the deportation proceedings improperly deprived him of the opportunity for judicial review.” Lopez-Collazo, 105 F.Supp.3d at 513. Accordingly, for purposes of this appeal, the first two requirements of
Lopez-Collazo offered three reasons why the 2007 removal order was fundamentally unfair. First, he contended that the entry of the removal order was fundamentally unfair because his convictions under Maryland law for second-degree assault and theft of less than $500 did not constitute aggravated felonies under Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and United States v. Royal, 731 F.3d 333 (4th Cir. 2013), and he was therefore not removable as charged. Second, Lopez-Collazo contended that because his offenses were not aggravated felonies, immigration officials should have advised him in 2007 that he was eligible for “voluntary departure” from the United States which, unlike removal, cannot be a predicate for an illegal reentry conviction. See United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 n.1 (9th Cir. 2004) (per curiam) (“[I]f [defendant] had departed voluntarily instead of being removed, he would not now be liable under
The district court agreed with Lopez-Collazo that the entry of the 2007 removal order was “fundamentally unfair” as required by
[T]he facts indisputably show that, to the extent Lopez-Collazo had any opportunity to be heard, the proceedings were conducted in a language he did not speak, and ended with him making an uncounseled, unknowing waiver of his ability to challenge the charges against him, either via available administrative remedies or upon petition for judicial review.
Lopez-Collazo, 105 F.Supp.3d at 517. Thus, the court concluded that because Lopez-Collazo‘s due process rights were abridged in the removal process, the entry of the order of removal was fundamentally unfair.
Finally, the district court considered whether Lopez-Collazo suffered any prejudice, correctly recognizing that “[u]nder the fundamental fairness prong of a collateral attack on a prior removal order, a defendant must establish that ‘the deficiencies in the deportation proceedings caused him actual prejudice.‘” Id. at 518 (quoting El Shami, 434 F.3d at 665). The district court concluded that had Lopez-Collazo been afforded a fair and meaningful opportunity to be heard on the charges against him, there was a reasonable probability that he would have ultimately been granted voluntary departure. The district court explained that, “although Lopez-Collazo would have remained removable on other grounds, I am satisfied that there is a reasonable probability that an immigration judge would have granted a request for voluntary departure, in lieu of deportation.” Id. at 519. To reach this conclusion, the district court applied current law rather than the law as it was understood at the time of his removal in 2007. The district court held that under current law, Lopez-Collazo‘s Maryland assault conviction did not constitute an aggravated felony and that Lopez-Collazo therefore had been eligible for voluntary departure. Accordingly, the court granted Lopez-Collazo‘s motion and dismissed the indictment.
The government appeals the district court‘s order and seeks reinstatement of the indictment. In considering the district court‘s grant of a motion under
II.
We focus our attention on the fundamental fairness requirement of
A. Due Process
“[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, tempo-
Such a meaningful opportunity does not exist, however, when the alien does not understand the proceedings without the aid of a translator. “A non-English-speaking alien has a due process right to an interpreter at her deportation hearing because, absent an interpreter, a non-English speaker‘s ability to participate in the hearing and her due process right to a meaningful opportunity to be heard are essentially meaningless.” Nazarova v. INS, 171 F.3d 478, 484 (7th Cir. 1999); see Marincas v. Lewis, 92 F.3d 195, 204 (3d Cir. 1996) (“[A] competent translator” is critical “to ensure the fairness of proceedings to applicants who do not speak English.“). An alien‘s due process right to a meaningful opportunity to be heard would be pointless in a removal proceeding wherein the alien and decision-maker could not understand each other. See Marincas, 92 F.3d at 204.
The district court concluded that Lopez-Collazo was denied an “opportunity to be heard at a meaningful time and in a meaningful manner,” El Shami, 434 F.3d at 664-65 (internal quotation marks omitted), based on “abundant evidence that . . . Lopez-Collazo required translation assistance in order to understand the NOI, the Waiver, and legal proceedings,” Lopez-Collazo, 105 F.Supp.3d at 516. Thus, in view of the fact that “the proceedings were conducted in a language he did not speak, and ended with him making an uncounseled, unknowing waiver of his ability to challenge the charges against him,” id. at 517, the district court found that Lopez-Collazo established that his due process rights were violated by a defect in his removal proceedings.
The government concedes that the expedited removal proceedings in this case did
The Service must either provide the alien with a written translation of the Notice of Intent or explain the contents of the Notice of Intent to the alien in the alien‘s native language or in a language that the alien understands.
For the reasons stated by the district court, we agree that DHS‘s failure to afford Lopez-Collazo a Spanish translation of the charges in the NOI and his rights rendered Lopez-Collazo‘s removal proceedings defective and abridged his due process rights. Accordingly, we turn to the prejudice inquiry. See United States v. Gomez, 757 F.3d 885, 892-93 (9th Cir. 2014) (“Once a due process or a qualifying regulatory violation has been established, we evaluate the third prong of
B. Prejudice
To establish fundamental unfairness under
The district court concluded that “but for the errors complained of“—i.e., the lack of a Spanish translation of the NOI‘s charges against him or an explanation of his right to challenge the charges and obtain legal counsel—“there was a reasonable probability that Lopez-Collazo would have been granted voluntary departure, . . . thereby avoiding deportation” and prosecution under
We cannot agree. As explained below, the district court‘s prejudice analysis necessarily rests on the flawed conclusion that had Lopez-Collazo challenged the charges set forth in the NOI in 2007, the conviction for second-degree assault in Maryland would not have been considered an aggravated felony. But circuit precedent at the
1. Framework for Determining if an Offense Constitutes an “aggravated felony” under the Immigration and Nationality Act
“When the Government alleges that a state conviction qualifies as an ‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’ to determine whether the state offense is comparable to an offense listed in the INA.” Moncrieffe v. Holder, 557 U.S. 1678, 1684, 185 L.Ed.2d 727 (2013); see Nijhawan v. Holder, 557 U.S. 29, 33-38, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009). “Although the categorical approach was first introduced in the context of criminal law, it has a long pedigree in our Nation‘s immigration law.” Etienne v. Lynch, 813 F.3d 135, 142 (4th Cir. 2015) (quoting Moncrieffe, 133 S.Ct. at 1685). “Under this approach we look not to the facts of the particular prior case, but instead to whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony.” Moncrieffe, 133 S.Ct. at 1684 (internal quotation marks omitted). “The reason is that the INA asks what offense the noncitizen was ‘convicted’ of, . . . not what acts he committed.” Id. at 1685 (quoting
In a limited class of cases, of course, it is appropriate for a court to look beyond the fact of conviction in deciding whether an offense constitutes a violent felony. See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). This “modified categorical approach,” applies to “state statutes that contain several different crimes, each described separately.” Moncrieffe, 133 S.Ct. at 1684. In such cases, “a court may determine which particular offense the noncitizen was convicted of by examining the charging document and jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or some comparable judicial record of the factual basis for the plea.” Id. (internal quotation marks omitted).
At the time of Lopez-Collazo‘s removal in 2007, this circuit had nearly ten years of precedent applying the modified categorical approach to determine whether a given Maryland assault conviction constituted a violent crime. In 1998, we considered whether a conviction for common law assault in Maryland constituted a crime of violence for purposes of the career offender guideline set forth in
And again, in 2006, we reaffirmed under Kirksey and Coleman the propriety of looking past the fact of conviction and the definition of the offense to determine if a Maryland assault conviction was a violent felony under the ACCA. See United States v. Simms, 441 F.3d 313, 314 (4th Cir. 2006). In Simms, we concluded that the defendant‘s Maryland assault conviction constituted a violent felony for purposes of the ACCA based on the information set forth in the charging papers. See Id. at 317. We rejected the argument that the Supreme Court‘s 2005 decision in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), undermined Coleman and Kirksey because Shepard specifically prohibited consideration of “police reports or complaint applications,” Shepard, 544 U.S. at 16. Because the victim‘s application was “explicitly incorporated into Maryland‘s statement of charges against Simms,” Simms, 441 F.3d at 317, we concluded that ”Shepard does not call into question our prior decisions” because ”Shepard specifically allows reference to the charging document,” id. at 318.
Even after 2007, this court continued to apply the modified categorical approach to Maryland assault convictions in these circumstances. See United States v. Donnell, 661 F.3d 890, 893 (4th Cir. 2011); United States v. Taylor, 659 F.3d 339, 345-46 (4th Cir. 2011); United States v. Alston, 611 F.3d 219, 220-21 (4th Cir. 2010); United States v. Harcum, 587 F.3d 219, 224 (4th Cir. 2009). Harcum and Alston, in particular, are illustrative of this court‘s long-established approach. In Harcum, the defendant‘s alleged predicate violent felony was a conviction for second-degree assault in violation of
Similarly, in Alston, the court considered whether the district court properly found that the defendant‘s Maryland conviction for second-degree assault, see
Thus, it is clear that at the time of removal proceedings, there was no question but that the modified categorical approach applied. The district court recognized as much, observing that “in 2007 the Fourth Circuit applied the modified categorical approach when called upon to analyze Maryland‘s crime of second-degree assault” pursuant to a “line of cases” that was “quite substantial.” Lopez-Collazo, 105 F.Supp.3d at 521.
2. Lopez-Collazo‘s Second Degree Assault Conviction Was Properly Categorized as an Aggravated Felony Under the Modified Categorical Approach Followed by Circuit Precedent in 2007
As detailed above, in 2007 this court would have used the modified categorical approach to determine if Lopez-Collazo‘s conviction for second-degree assault in Maryland was a crime of violence since the Maryland statute “encompasses several distinct crimes, some of which qualify as violent felonies and others of which do not.” Alston, 611 F.3d at 223. Here, the formal charging document expressly incorporated the probable cause affidavit which provided that Lopez-Collazo “attempted to run down” law enforcement officers with his vehicle and kicked and struck the officers several times as they were trying to pull him from the vehicle and place him in handcuffs. J.A. 60. The plea colloquy confirmed all of these facts as well. Accordingly, it is clear that, under the law as it was understood in 2007, Lopez-Collazo‘s second-degree assault conviction constituted a “crime of violence” as defined in
Accordingly, Lopez-Collazo cannot show that “there was a reasonable probability that he would not have been deported.” El Shami, 434 F.3d at 665. Since Lopez-Collazo‘s ability to demonstrate prejudice hinges on his eligibility for voluntary departure in 2007, see Ortiz-Lopez, 385 F.3d at 1204 n.1;
3. The District Court‘s Application of Current Law to Determine Whether Lopez-Collazo‘s State Convictions Were Properly Categorized as Aggravated Felonies in 2007
Even though the district court recognized that Lopez-Collazo‘s conviction qualified as an aggravated felony under existing law in 2007, it applied current law under Descamps to the prejudice analysis. The government has not challenged the premise that Lopez-Collazo‘s assault conviction would not constitute an “aggravated felony” under current law. In United States v. Royal, we held that, under Descamps, a Maryland second-degree assault offense is not amenable to the modified categorical approach because it includes indivisible elements, see 731 F.3d at 341-42, thus abrogating Harcum, Simms, Coleman and Kirksey, see United States v. Aparicio-Soria, 740 F.3d 152, 156 (4th Cir. 2014) (en banc). Since this court has long recognized that this offense is not categorically a crime of violence, see Royal, 731 F.3d at 342, a conviction for second-degree assault under Maryland law can no longer qualify as an aggravated felony.
It is somewhat difficult to discern the district court‘s basis for applying current law to determine whether Lopez-Collazo would not have been removed in 2007 but for the procedural defects at issue. As we understand the district court‘s reasoning, it would assess “fundamental fairness . . . under the law governing an alien‘s removal at the time of the removal proceeding,” Lopez-Collazo, 105 F.Supp.3d at 523, unless post-removal precedent later reveals that the prevailing view of the law at the time of removal was erroneous. According to the district court, “it would [not] be error to apply Descamps ‘retroactively,’ because Descamps merely clarified existing law . . . . [T]here has been no change in the applicable law in terms of the proper analysis to determine whether defendant‘s prior State offenses were aggravated felonies.” Id.
The court‘s approach, however, impermissibly disconnects the prejudice analysis from the specific due process violation identified by the court. The defendant‘s burden is to show that actual prejudice resulted from the due process violation at issue. In this case, the specific due process violation at issue was the failure to translate the NOI so that Lopez-Collazo could understand the charges against him and his rights and responsibilities during removal proceedings. Had the charges and his rights been explained to Lopez-Collazo, he would have had the opportunity to challenge the classification of his assault conviction as an aggravated felony at the time of his removal. The defect in the removal proceedings and the resulting prejudice must be linked. See Fernandez-Antonia, 278 F.3d at 159; Garcia-Martinez, 228 F.3d at 963. There must be a “reasonable probability” that if the proceedings had been error-free, the defendant would have obtained relief from removal. See El Shami, 434 F.3d at 665. Logically, therefore, prejudice under
Under the law in effect at the time of his removal in 1998, [defendant‘s] prior possession offenses qualified as aggravated felonies. See, e.g., Matter of Yanez-Garcia, 23 I. & N. Dec. 390, 398 (BIA 2002) (holding that felony possession qualifies as an aggravated felony); Fernandez v. Mukasey, 544 F.3d 862, 874 (7th Cir. 2008) (holding that multiple state possession convictions make an alien removable as an aggravated felon). Though the law has since changed and [defendant‘s] possession offenses no longer constitute aggravated felonies . . . , the law in effect at the time of [defendant‘s] challenged removal is what matters to our analysis. Since [defendant‘s] offenses constituted aggravated felonies in 1998, [he] could [not] . . . have applied for discretionary relief . . . .
United States v. Baptist, 759 F.3d 690, 697-98 (7th Cir. 2014); see also Gomez, 757 F.3d at 898-99 (“[In deciding whether] defendant [carried] the burden of proving prejudice under
The district court‘s application of current law is problematic for another reason. In “applying post-removal-proceeding precedent to determine whether [the] prior entry of a removal order [against Lopez-Collazo] was fundamentally unfair,” Lopez-Collazo, 105 F.Supp.3d at 525, the district court implicitly determined that the categorization of Lopez-Collazo‘s assault conviction as an aggravated felony was itself a due process violation, independent from the failure to translate the NOI to Lopez-Collazo. Indeed, Lopez-Collazo argues that the district court properly dismissed the indictment “because ICE officers misapplied the law” by administratively removing him “for having aggravated felony convictions” which “depriv[ed] him of the opportunity to obtain voluntary departure.” Brief of Appellee at 17.
Although an error of law, without more, “will ordinarily not rise to the level of a due process violation,” United States v. Torres, 383 F.3d 92, 104 (3d Cir. 2004), there might be circumstances under which some courts would conclude that a misapplication of the law as it existed at the time—not as understood in light of subsequent judicial decisions—led to a due process violation, see United States v. Pallares-Galan, 359 F.3d 1088, 1100-01 (9th Cir. 2004). Under such circumstances, it might be possible for the court to conclude that “but for” the misapprehension of the law, defendant would not have been removed. But even these courts do not require the agency to be clairvoyant, “inform[ing] the alien of a future interpretation of the law” regarding “what the meaning of the law always was in some theoretical way.” United States v. Vidal-Mendoza, 705 F.3d 1012, 1018-19 (9th Cir. 2013) (internal quotation marks omitted).
But in Lopez-Collazo‘s case, there was no such misapplication of the law as it stood in 2007. The administrative removal order was actually premised on the faithful application of existing law. Under the law as it was understood at the time of Lopez-Collazo‘s removal, he cannot have suffered prejudice because he was understood to be statutorily ineligible for relief from removal, and therefore there was no reasonable probability that he would not have been deported.
III.
For the foregoing reasons, we conclude that Lopez-Collazo failed to establish that his order of removal was “fundamentally unfair” under
REVERSED AND REMANDED
GREGORY, Circuit Judge, dissenting:
I write only to address the question of whether misapplication of the law, as we now understand it, can constitute a due process violation that causes prejudice. In my view, it can, and I would affirm on that basis.
As the majority recognizes, “a conviction for second-degree assault under Maryland law can no longer qualify as an aggravated felony.” Maj. Op. 466. Nevertheless, “[a] judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” Rivers v. Roadway Exp., Inc., 511 U.S. 298, 312-13, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994). Thus, our decision in United States v. Royal, 731 F.3d 333 (4th Cir. 2013), did not “change[ ]” the meaning of Maryland‘s second-degree assault offense; instead, we decided what the statute “had always meant.” See Rivers, 511 U.S. at 313 n.12. And misapplication would constitute a due process violation. See United States v. Pallares-Galan, 359 F.3d 1088, 1100-01 (9th Cir. 2004).
As we have seen in recent decisions, the Supreme Court has questioned the constitutionality of a decades-long tough-on-crime mentality. E.g., Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015); Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The Court is also concerned with the implications that such decisions have on those who were convicted under the “old rules.” E.g., Welch v. United States, — U.S. —, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016); Montgomery v. Louisiana, — U.S. —, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), as revised (Jan. 27, 2016).
“A man should never be ashamed to own he has been in the wrong, which is but saying, in other words, that he is wiser today than he was yesterday.” Alexander Pope, Thoughts on Various Subjects, reprinted in 5 Alexander Pope & William Roscoe, The Works of Alexander Pope, Esq. 377, 378 (1847). Although equally entitled to the constitutional protections of due process, Lopez-Collazo had the unfortunate fate of being sentenced in our “yesterday” in a way we now know to be improper. We should not leave him to suffer given our enlightenment today.
Accordingly, I would affirm the district court.
ROGER L. GREGORY
UNITED STATES CIRCUIT JUDGE