United States v. Agustin Lopez-Collazo

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4312

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

AGUSTIN LOPEZ-COLLAZO, a/k/a Agustin Martinez-Lopez, a/k/a
Agustin Lopez,

Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Ellen L. Hollander, District Judge.
(1:14-cr-00486-ELH-1)

Argued: December 9, 2015 Decided: June 1, 2016

Before TRAXLER, Chief Judge, and GREGORY and DIAZ, Circuit
Judges.

Reversed and remanded by published opinion. Chief Judge Traxler
wrote the opinion in which Judge Diaz joined. Judge Gregory
wrote a dissenting opinion.

ARGUED: Sujit Raman, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellant. Joanna Beth Silver, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellant. James Wyda, Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellee.
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 8 U.S.C. §

1228(b). Lopez-Collazo did not contest the DHS’s charges

against him and was removed to Mexico in November 2007. Soon

after, Lopez-Collazo again entered the United States illegally;

he was subsequently discovered and indicted for illegal reentry

by a deported alien in violation of 8 U.S.C. § 1326(a), (b)(2).

The district court granted Lopez-Collazo’s motion to dismiss the

indictment under § 1326(d), concluding that the underlying

removal order was invalid because DHS failed to explain to

Lopez-Collazo in his native language either the removal charges

against him or his right to contest the charges or obtain legal

representation. See United States v. Lopez-Collazo, 105 F.

Supp. 3d 497 (D. Md. 2015).

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

2
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 Md. Code Ann., Crim. Law

§ 7-104. In May 2007, he pled guilty under Maryland law to

second degree assault, see Md. Code Ann., Crim. Law § 3-203, for

which he was sentenced to 18 months imprisonment, with all but

72 days suspended, and given 18 months probation.

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 8 U.S.C. § 1228(b), an alien who is not a permanent

resident and who has been convicted of an aggravated felony is

amenable to expedited administrative removal proceedings. See 8

U.S.C. § 1228(b)(1), (2), (4); 8 C.F.R. § 238.1. Expedited

3
removal proceedings are governed by DHS regulations set forth in

8 C.F.R. § 238.1. See 8 U.S.C. § 1228(b)(4) (“Proceedings

before the Attorney General under this subsection shall be in

accordance with such regulations as the Attorney General shall

prescribe.”). 1

In contrast to standard removal proceedings, expedited

removal proceedings do not involve a hearing before an

immigration judge. Rather, a DHS immigration officer determines

whether the alien is removable as an “aggravated felon[]” under

8 U.S.C. § 1227(a)(2)(A)(iii), and, upon finding the alien

removable “by clear, convincing, and unequivocal evidence,”

issues a “Final Administrative Removal Order” without referring

the case to an immigration judge, 8 C.F.R. § 238.1(d).

Significantly, aliens subject to expedited removal are barred

from discretionary forms of relief such as voluntary departure.

See 8 U.S.C. § 1228(b)(5); Jankowski-Burczyk v. INS, 291 F.3d

172, 179 (2d Cir. 2002) (noting that alien removed pursuant to §

1228(b) “is categorically barred from receiving any form of

1 Although 1228(b)(4) refers to the “Attorney General,” the
Homeland Security Act of 2002 transferred authority to
promulgate regulations to the Department of Homeland Security.
See Valdiviez-Hernandez v. Holder, 739 F.3d 184, 191 n.3 (5th
Cir. 2013) (per curiam) (citing Pub. L. No. 107–296, sec. 441,
116 Stat. 2135, 2177). And, where functions are transferred by
the Act to DHS, statutory references to the authority that was
formerly responsible for those functions will be deemed to refer
to DHS. See 6 U.S.C. § 557.

4
discretionary relief”). 2 An alien subject to expedited removal

cannot administratively appeal an adverse decision to the Board

of Immigration Appeals, see generally 8 U.S.C. § 1228(b)(3); 8

C.F.R. § 238.1, but has a 14-day period “to apply for judicial

review under [8 U.S.C. § 1252],” 8 U.S.C. § 1228(b)(3).

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 8 U.S.C. §

1227(a)(2)(A)(iii). More specifically, the Government charged

that the 2007 Maryland conviction for second degree assault

constituted a “crime of violence,” and therefore an aggravated

felony, under 8 U.S.C. § 1101(a)(43)(F), and that the 2005

Maryland theft offense constituted “a theft offense . . . for

which the term of imprisonment [is] at least one year,” and

therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(G).

2
There are limited circumstances in which an alien subject
to expedited removal may obtain review by an immigration judge.
Such an alien may seek a determination that he is eligible for
withholding of removal, which is non-discretionary. Upon the
alien’s request, an asylum officer must perform a reasonable
fear interview; the alien may seek review from an immigration
judge of a negative reasonable fear determination. See 8 C.F.R.
§ 208.31.

5
 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 . . . .

You may seek judicial review of any final
administrative order by filing a petition for review
within 14 calendar days . . . or you may waive such
appeal . . . .

J.A. 19.

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,

6
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 8 U.S.C. § 1326.

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 8 U.S.C. §

1326(d). Under § 1326(d), a defendant charged with illegal

reentry is permitted to collaterally attack a prior removal

7
order. To prevail, the defendant must show that “(1) the alien

exhausted any administrative remedies that may have been

available to seek relief against the order; (2) the deportation

proceedings at which the order was issued improperly deprived

the alien of the opportunity for judicial review; and (3) the

entry of the order was fundamentally unfair.” Id. Because

“[t]hese requirements are listed in the conjunctive, . . . a

defendant must satisfy all three in order to prevail.” United

States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005) (internal

quotation marks omitted). When the defendant satisfies all of §

1326(d)’s requirements, the district court must dismiss the

illegal reentry charge. See id.

The government argued that Lopez-Collazo could not satisfy

§ 1326(d)’s exhaustion requirement because on the NOI form he

expressly waived the right to contest the charges against him or

seek judicial review of the removal order. Likewise, the

government maintained that Lopez-Collazo could not establish, as

required by § 1326(d), that he was improperly deprived of

judicial review. An alien subject to an administrative order of

removal entered after expedited proceedings is permitted to seek

judicial review under 8 U.S.C. § 1252(a)(2)(D). See 8 U.S.C. §

1228(b)(3). In response, Lopez-Collazo, a native Spanish

speaker who understood almost no English, argued that the waiver

was invalid because neither the charges nor the waiver language

8
set forth on the NOI form were translated into Spanish or read

to him by a Spanish translator.

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 § 1326(d) were satisfied by Lopez-Collazo,

9
and we focus solely on the final requirement for collaterally

attacking an order of removal under § 1326(d): that “the entry

of the order was fundamentally unfair.” 8 U.S.C. § 1326(d)(3).

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, 133 S. Ct. 2276 (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 8 U.S.C. § 1326 for illegal

reentry following removal, because he would never have been

removed.”). Finally, Lopez-Collazo argued that the 2007 removal

order was “fundamentally unfair” because the government’s

failure to provide a Spanish translation of the charges in the

NOI deprived him of a meaningful opportunity to seek voluntary

10
departure or otherwise challenge his removal order. In

response, the government argued that Lopez-Collazo's pre-

Descamps Maryland offenses qualified as aggravated felonies in

2007 and that therefore he was removable subject to expedited

removal proceedings and ineligible for voluntary departure.

The district court agreed with Lopez-Collazo that the entry

of the 2007 removal order was “fundamentally unfair” as required

by § 1326(d). Specifically, the district court determined that

the government’s failure to provide a Spanish translation of the

charges against him deprived him of a fundamental due process

right to the “opportunity to be heard at a meaningful time and

in a meaningful manner,” Lopez-Collazo, 105 F. Supp. 3d at 515

(internal quotation marks omitted), under the standard

articulated in United States v. El Shami, 434 F.3d 659, 664-65

(4th Cir. 2005). Reasoning that a “competent translator” is

necessary “to ensure the fairness of proceedings to applicants

who do not speak English,” 105 F. Supp. 3d at 516 (internal

quotation marks omitted), the district court concluded that

Lopez-Collazo was not afforded “the 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). The district

court explained:

[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

11
 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

12
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 § 1326(d) to dismiss an

indictment, we review the court’s legal conclusions de novo and

its factual findings for clear error. See United States v.

Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005).

II.

We focus our attention on the fundamental fairness

requirement of § 1326(d). “To demonstrate fundamental

unfairness” in the entry of the removal order, “a defendant must

show that (1) his due process rights were violated by defects in

his underlying deportation proceeding, and (2) he suffered

prejudice as a result of the defects.” El Shami, 434 F.3d at

664 (internal quotation marks omitted). We consider each prong

below.

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, temporary, or permanent.” Zadvydas v.

13
Davis, 533 U.S. 678, 693 (2001); see Shaughnessy v. United

States ex rel. Mezei, 345 U.S. 206, 212 (1953) (“[A]liens who

have once passed through our gates, even illegally, may be

expelled only after proceedings conforming to traditional

standards of fairness encompassed in due process of law.”). An

alien “may not be deprived of his life, liberty or property

without due process of law,” meaning that “before his expulsion,

he is entitled to notice of the nature of the charge and a

hearing at least before an executive or administrative

tribunal.” Kwong Hai Chew v. Colding, 344 U.S. 590, 596-97

(1953). Due process requires, at a minimum, that an alien be

given “(1) notice of the charges against him, (2) a hearing

before an executive or administrative tribunal, and (3) a fair

opportunity to be heard.” El Shami, 434 F.3d at 665 (internal

quotation marks omitted). 3 Thus, an alien subject to expedited

3The expedited administrative removal scheme, in and of
itself, “comports with the minimum requirements of due process.”
United States v. Benitez-Villafuerte, 186 F.3d 651, 657-58 (5th
Cir. 1999); see United States v. Rangel de Aguilar, 308 F.3d
1134, 1138 (10th Cir. 2002); United States v. Garcia-Martinez,
228 F.3d 956, 960-63 (9th Cir. 2000). The statutory
administrative removal scheme mandates, among other things, that
the alien be “given reasonable notice of the charges,” 8 U.S.C.
§ 1228(b)(4)(A); be allowed to secure representation, see id. §
1228(b)(4)(B); and be given “a reasonable opportunity to inspect
the evidence and rebut the charges,” id. § 1228(b)(4)(C).
Additionally, the statute prohibits the Attorney General from
executing an order of removal until 14 days have passed from the
issuance of the order so that the alien may seek judicial review
under § 1252. See id. § 1228(b)(3).

14
removal is entitled to “the opportunity to be heard at a

meaningful time and in a meaningful manner.” Id. at 664-65

(internal quotation marks omitted).

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-

15
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 not comport with due process on the

alternative basis that in failing to provide Lopez-Collazo with

a Spanish translation of the NOI, the DHS failed to comply with

its own procedures:

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.

8 C.F.R. § 238.1(b)(2)(v). The government allows that DHS’s

failure to adhere to its own regulations was a violation of due

process that enabled Lopez-Collazo to establish the first prong

of § 1326(d)’s fundamental unfairness requirement.

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

16
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 § 1326(d) (that

the deportation order was ‘fundamentally unfair’) as a

‘prejudice’ inquiry.”).

B. Prejudice

To establish fundamental unfairness under § 1326(d), a

defendant must show that he suffered actual prejudice as a

result of the due process violations in the removal proceedings.

See El Shami, 434 F.3d at 665 (“[A defendant] has to show under

the fundamental unfairness requirement . . . that the

deficiencies in the deportation proceedings caused him actual

prejudice.”). For Lopez-Collazo to meet the actual prejudice

requirement, he must demonstrate “that, but for the errors

complained of, there was a reasonable probability that he would

not have been deported.” Id. This is not a generalized showing

of prejudice; rather, the defendant must link the actual

prejudice he claims to have suffered to the specific due process

violation at issue. See United States v. Fernandez-Antonia, 278

F.3d 150, 159 (2d Cir. 2002) (“[Defendant] must show both a

fundamental procedural error and prejudice resulting from that

error.” (emphasis added)); Garcia-Martinez, 228 F.3d at 963

(explaining that a defendant “must demonstrate that prejudice

resulted from the asserted procedural defect” (emphasis added)).

17
 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 § 1326. Lopez-Collazo, 105 F. Supp. 3d at

530-31. The court’s conclusion presupposed that once Lopez-

Collazo successfully challenged the classification of his prior

state convictions as aggravated felonies and established

eligibility for discretionary relief, there was a “reasonable

probability” that an immigration judge would have granted him

voluntary departure on the basis that the “positive equities” of

Lopez-Collazo’s case outweighed the negative ones. Id. at 530.

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 time of Lopez-Collazo’s

administrative removal in 2007 tells us otherwise.

1. Framework for Determining if an Offense Constitutes an
“aggravated felony” under the Immigration and Nationality Act

18
 “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, 133 S. Ct. 1678, 1684 (2013); see Nijhawan

v. Holder, 557 U.S. 29, 33–38 (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 8 U.S.C. §

1227(a)(2)(A)(iii)). An alien’s actual conduct is irrelevant to

the inquiry, as the adjudicator “must presume that the

conviction rested upon nothing more than the least of the acts

criminalized” under the state statute. See id. at 1684

(internal quotation marks and alterations omitted).

In a limited class of cases, of course, it is appropriate

for a court to look beyond the fact of conviction in deciding

19
whether an offense constitutes a violent felony. See Taylor v.

United States, 495 U.S. 575, 602 (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 U.S.S.G. § 4B1.1. See

United States v. Kirksey, 138 F.3d 120, 122 (4th Cir. 1998). We

concluded that a Maryland assault conviction was not

categorically a crime of violence because “an assault is an

attempted battery” and, in turn, a battery under Maryland law

“embraces a wide range of conduct, including kissing without

consent, touching or tapping, jostling, and throwing water upon

another.” Id. at 125 (internal quotation marks omitted).

20
Therefore, because it was “unclear whether . . . the conduct

encompassed in the crime of battery [categorically]

constitute[d] the use of physical force against the person of

another to the degree required to constitute a crime of

violence,” id., we held that under Taylor we were obligated to

“look beyond the definition of the crime to examine the facts

contained in the charging document,” id. at 124.

Shortly thereafter, the en banc court affirmed this

approach in United States v. Coleman, 158 F.3d 199, 200 (4th

Cir. 1998) (en banc), which applied the modified categorical

approach to determine whether a common-law assault conviction

under Maryland law was a “violent felony” for purposes of the

Armed Career Criminal Act (“ACCA”). Noting that it was “unable

to conclude that a Maryland conviction for common-law assault is

per se a violent felony within the meaning of §

924(e)(2)(B)(i),” the en banc court concluded that “the district

court properly looked beyond the fact of conviction and the

elements of the offense to determine whether the particular

offense of which Coleman was convicted was a violent felony.”

Id. at 202. In particular, we affirmed the district court’s

consideration of the probable cause affidavit which set forth

facts showing that “Coleman’s offense involved the use,

attempted use, or threatened use of physical force against the

victim.” Id. at 203.

21
 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 (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

22
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 Md. Code Ann., Crim.

Law §§ 3-201, -203. We reiterated that an assault conviction

under § 3-201 is not a violent crime per se, and that “the

question of whether Harcum’s assault conviction was for [a] . .

. violent felony cannot be determined solely from the statutory

definition of the offense.” 587 F.3d at 224. Citing Simms, we

applied the modified categorical approach and examined the

Information filed against Harcum, which ultimately “lack[ed]

sufficient factual allegations to support classifying Harcum’s

second-degree assault offense as an ACCA violent felony.” Id.

Similarly, in Alston, the court considered whether the

district court properly found that the defendant’s Maryland

conviction for second-degree assault, see Md. Code Ann., Crim.

Law § 3-203, was a “violent felony” under the ACCA when the

conviction was obtained via an Alford plea, see 611 F.3d at 222.

The court explained that the modified categorical approach was

necessary to resolve this question because “under Maryland law,

second-degree assault encompasses several distinct crimes, some

of which qualify as violent felonies and others of which do

not.” Id. at 223; see Johnson v. United States, 559 U.S. 133,

144 (2010) (noting that “[w]hen the law under which the

23
defendant has been convicted contains statutory phrases that

cover several different generic crimes, some of which require

violent force and some of which do not, the ‘modified

categorical approach’ that we have approved permits a court to

determine which statutory phrase was the basis for the

conviction by consulting the trial record” (internal quotation

marks and citation omitted)). To support its conclusion that

Alston’s conviction was for a violent crime, however, the

district court relied on the transcript of the Alford plea

proceeding. The court held that “Shepard prevents sentencing

courts from assessing whether a prior conviction counts as an

ACCA predicate conviction by relying on facts neither inherent

in the conviction nor admitted by the defendant,” 611 F.3d at

226, which is the case in the context of an Alford plea, wherein

“the defendant does not confirm [the proffered] factual basis,”

id. at 227 (internal quotation marks omitted).

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.

24
 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 18

U.S.C. § 16(a) (“an offense that has as an element the use,

attempted use, or threatened use of physical force against the

person or property of another”), which, in turn, made it an

“aggravated felony” under the INA. See 8 U.S.C. § 1101(43)(F).

And, as we noted previously, an illegal alien who has committed

an aggravated felony is amenable to expedited removal, see 8

25
U.S.C. § 1228(b), and ineligible for discretionary forms of

relief such as voluntary departure, see 8 U.S.C. § 1228(b)(5).

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; 8

U.S.C. § 1326(a)(1) (applying to aliens who reenter after having

been previously removed or after having departed while a removal

order was outstanding), his case for “fundamental unfairness”

collapses “[b]ecause his deportation was a foregone conclusion”

at that time, Garcia-Martinez, 228 F.3d at 963; see United

States v. Lopez-Vasquez, 227 F.3d 476, 485 (5th Cir. 2000)

(“[I]f the defendant was legally deportable and, despite the

INS’s errors, the proceeding could not have yielded a different

result, the deportation is valid for purposes of section 1326.”

(internal quotation marks omitted)).

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

26
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

27
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 § 1326(d) must be “judged at the time of the [agency’s

removal] decision.” United States v. Villanueva-Diaz, 634 F.3d

844, 852 (5th Cir. 2011). As at least two Circuit Courts of

Appeal have recognized, this is so even if the law is later

changed:

28
 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 (9th Cir. 2014) (“[In

deciding whether] defendant [carried] the burden of proving

prejudice under § 1326(d)(3),” courts “look to the law at the

time of the deportation proceedings.”).

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

29
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

30
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 § 1326(d). Accordingly, we reverse the order of

the district court dismissing the indictment and remand the case

with instructions that the indictment be reinstated.

REVERSED AND REMANDED

31
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. 27. 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 (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, 135 S. Ct.

2551 (2015); Miller v. Alabama, 132 S. Ct. 2455 (2012). The

Court is also concerned with the implications that such

decisions have on those who were convicted under the “old

32
rules.” E.g., Welch v. United States, 136 S. Ct. 1257 (2016);

Montgomery v. Louisiana, 136 S. Ct. 718 (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 to-

day 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.

33