USCA4 Appeal: 20-4061 Doc: 93 Filed: 08/23/2022 Pg: 1 of 24

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4061

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

BONIFACIO FERNANDEZ SANCHEZ,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, Senior District Judge. (3:18-cr-00022-NKM-JCH-1)

Argued: May 4, 2022 Decided: August 23, 2022

Before GREGORY, Chief Judge, and MOTZ and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Chief Judge Gregory and Judge Motz joined.

ARGUED: Laura Day Taylor, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellant. Erin Margaret Trodden, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Harrisonburg, Virginia, for Appellee. ON BRIEF: Thomas T. Cullen, United States Attorney, Christopher R. Kavanaugh, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellant. Juval O. Scott, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellee. USCA4 Appeal: 20-4061 Doc: 93 Filed: 08/23/2022 Pg: 2 of 24

WYNN, Circuit Judge:

Bonifacio Fernandez Sanchez, a Mexican citizen who migrated to the United States

illegally as a minor in 2006, was deported in 2011 following a four-minute removal

hearing. During that hearing, the immigration judge neglected to advise Fernandez Sanchez

about his eligibility for voluntary departure or inform him of his right to appeal. Then, in

his written summary order, the immigration judge indicated that Fernandez Sanchez had

waived his right to appeal—even though this was never discussed during the hearing.

In the years since, Fernandez Sanchez has returned to the United States and been

deported multiple times. Upon discovering him in the country once again in 2018, the

Government opted to arrest and charge him with illegal reentry in violation of

(a). Fernandez Sanchez moved to dismiss his indictment, arguing that the 2011

deportation order underlying his § 1326 charge was invalid.

The district court agreed, finding that the immigration judge’s failure to advise

Fernandez Sanchez regarding his eligibility for voluntary departure rendered his 2011

removal fundamentally unfair. However, while this appeal was pending, we effectively

rejected the district court’s reasoning in United States v. Herrera-Pagoada,

(4th Cir. 2021). Fernandez Sanchez nevertheless maintains that the district court’s decision

must be affirmed on an alternative basis: that the immigration judge’s denial of his right to

appeal also prejudiced him. We agree, and therefore affirm the dismissal of Fernandez

Sanchez’s indictment.

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I.

The following facts are undisputed. Fernandez Sanchez is a native and citizen of

Mexico who first entered the United States as a minor in 2006. While residing here,

Fernandez Sanchez started a family and fathered two children, both of whom are U.S.

citizens.

In 2010, Fernandez Sanchez was arrested for driving under the influence. The police

department referred him to U.S. Immigration and Customs Enforcement (“ICE”). While

he was in ICE custody, the Government served him with a Notice to Appear before an

immigration judge, alleging that he had entered the country without being admitted or

paroled following an inspection by an immigration officer. Instead of admitting he was in

the United States illegally, Fernandez Sanchez requested a hearing before an immigration

judge. The hearing took place on June 30, 2011.

At that hearing, the immigration judge failed to abide by several procedural

requirements. See

(a) (2011). For example, the immigration judge did

not advise Fernandez Sanchez of his “right to representation” and the availability of pro

bono legal services, or ensure that Fernandez Sanchez received a list of local pro bono legal

service providers.

§ 1240.10(a)(1)–(3) (2011). The immigration judge also did not

explain “the factual allegations and the charges in the notice to appear” to Fernandez

Sanchez in “non-technical language”; advise him that he would “have a reasonable

opportunity to examine and object to the evidence against him” and “to present evidence”

on his own behalf; or place him “under oath.” Id. § 1240.10(a)(4)–(6) (2011). Nor did the

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immigration judge inform Fernandez Sanchez of his right to appeal. 1 See 8 U.S.C.

§ 1229a(c)(5) (2011) (stating the immigration “judge shall inform the [noncitizen] of the

right to appeal [an adverse] decision” (emphasis added));

(a)(3) (2011)

(requiring the judge to “[a]scertain” that the noncitizen has received “a copy of appeal

rights”);

(d) (2011) (requiring an immigration judge to advise a

removable noncitizen of their right to appeal to the Board of Immigration Appeals).

Instead, at the hearing—which lasted just over four minutes—the immigration judge

started by asking Fernandez Sanchez via an interpreter whether he had an attorney. When

Fernandez Sanchez responded he did not, the judge asked whether he “wish[ed] to find an

attorney and contest the case, or [whether he] wish[ed] to return home to Mexico.” J.A.

128 (audio recording). 2 Fernandez Sanchez—who conceded that he had entered the country

illegally in 2006—replied that he would return to Mexico. But in response to further

questions, Fernandez Sanchez stated that while he was not afraid to return to Mexico, he

wished to remain in the United States because his children (who are U.S. citizens) and their

mother all live here. He also emphasized that he had been “taking care of [his children]

since they were born.” J.A. 128.

1 Fernandez Sanchez’s Notice to Appear did state, in English, that he had a right to appeal an adverse decision by the immigration judge. However, Fernandez Sanchez does not speak English, and there is no evidence to suggest the Notice was ever translated to him in Spanish. 2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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The immigration judge then asked whether Fernandez Sanchez had “the money to

pay [for his] ticket to go back to Mexico.” J.A. 128. In response, Fernandez Sanchez stated

that he did not want to be deported. 3 He also noted that he did not have the money to pay

for a ticket at that time because his money went toward supporting his children. Without

any further investigation, the immigration judge then summarily ordered Fernandez

Sanchez to be deported to Mexico and closed the hearing.

Following the hearing, the immigration judge memorialized his removal decision in

a written form order. That order is supposed to be merely “a summary of the oral decision”

entered at Fernandez Sanchez’s hearing. J.A. 30; see also

(stating that in the event of

an appeal “the oral decision will become the official opinion in the case”). However,

although neither the right to appeal nor any waiver of that right was discussed at the

hearing, the immigration judge indicated on the written form order that Fernandez Sanchez

had “[w]aived” his right to appeal. J.A. 30.

Normally, a noncitizen has thirty days to file an appeal of a removal decision.

(b), 1240.15 (2011). During this time period, the noncitizen generally

may not be removed unless they waive their right to appeal.

§ 1003.6(a) (2011). Since

Fernandez Sanchez’s order indicated he had waived his appellate rights, however, he was

removed twenty-two days after his hearing on July 22, 2011.

Fernandez Sanchez was found again in the United States in January and February

2013. On both occasions, immigration authorities reinstated his 2011 deportation order,

3 The interpreter did not translate this statement.

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Fernandez Sanchez declined to contest their determinations, and he was subsequently

removed.

Five years later, Fernandez Sanchez was arrested once more for driving under the

influence. After he was transferred to ICE custody, a grand jury indicted him on one count

of illegal reentry in violation of

(a). That section provides that “any

[noncitizen] who . . . has been denied admission, excluded, deported, or removed or has

departed the United States while an order of exclusion, deportation, or removal is

outstanding, and thereafter . . . enters, attempts to enter, or is at any time found in, the

United States, . . . shall be fined . . . , or imprisoned not more than 2 years, or both,” with

certain exceptions not applicable here.

(a) (2018).

Fernandez Sanchez moved to dismiss the indictment by collaterally attacking the

underlying 2011 removal order pursuant to

(d). 4 Under that provision,

Fernandez Sanchez was required to show that (1) he exhausted his administrative remedies,

(2) he was denied the opportunity for judicial review, and (3) his removal was

fundamentally unfair, meaning the immigration judge violated his due-process rights in a

way that actually prejudiced him. United States v. El Shami,

, 663–65 (4th

Cir. 2005) (citing

(d)).

4 Fernandez Sanchez also initially argued that since his Notice to Appear “lacked not only the date and time of his removal hearing, but also the address of the immigration court where it would be filed,” the immigration court lacked jurisdiction over him. J.A. 10. However, we squarely rejected this argument in United States v. Cortez,

(4th Cir. 2019), and Fernandez Sanchez “recognized before the district court that Cortez was dispositive” on that point. Response Br. at 4 n.2.

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Fernandez Sanchez’s motion claimed that the immigration judge’s failure to inform

him of his right to appeal satisfied the first two prongs. As for the third prong, his argument

largely focused on a separate removal-hearing regulation that requires an immigration

judge to “inform the [noncitizen] of his or her apparent eligibility to apply for” relief from

removal and “afford the [noncitizen] an opportunity to make application [for such relief]

during the hearing.”

(a)(2) (2011). According to Fernandez Sanchez,

the immigration judge shirked this duty when he failed to adequately inform Fernandez

Sanchez of his potential eligibility for “[s]o-called ‘pre-conclusion voluntary departure.’” 5

Narine v. Holder,

, 248 n.1 (4th Cir. 2009).

The district court agreed. The court accepted Fernandez Sanchez’s logic that the

immigration judge’s failure to inform him of the right to appeal satisfied the first two

prongs of the § 1326(d) analysis. As for the third prong, the court concluded that the

immigration judge’s “failure to apprise [Fernandez Sanchez] of his potential eligibility for

pre-conclusion voluntary departure violated his due process rights.” United States v.

Fernandez Sanchez, No. 3:18-CR-00022,

, at *5 (W.D. Va. Dec. 20,

2019). And the court further concluded that this failure prejudiced Fernandez Sanchez

5 Pre-conclusion voluntary departure “allows a[] [noncitizen] charged with removability to depart the country voluntarily prior to the completion of removability proceedings,” Narine v. Holder,

, 248 n.1 (4th Cir. 2009), so long as they satisfy certain regulatory factors and merit a favorable exercise of discretion,

(b)(1)(i) (2011) (listing factors); In re Arguelles-Campos,

(B.I.A. 1999) (en banc) (holding that “discretion remains a required element of voluntary departure”). By contrast, post-conclusion voluntary departure provides similar relief “at the conclusion of the removal proceedings,” with stricter eligibility requirements.

(c) (2011) (listing requirements).

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because there was “a reasonable probability that he would have received voluntary

departure had he been advised of it.”

Having found that Fernandez Sanchez could

satisfy all three prongs of § 1326(d) and therefore could successfully collaterally attack the

underlying 2011 deportation order, the court dismissed the indictment. Id. at *9. The

Government timely appealed.

While this appeal was pending, we issued our opinion in United States v. Herrera-

Pagoada. In that case, defendant Lexy Leonel Herrera-Pagoada sought to prove he was

actually innocent of an

(a) violation “by collaterally attacking the removal

order underlying his illegal reentry conviction.” Herrera-Pagoada,

. Like

Fernandez Sanchez, Herrera-Pagoada argued that his due-process rights were violated by

the immigration judge’s failure to advise him that he was eligible for pre-conclusion

voluntary departure.

; see

at 315 n.3. We rejected that argument, holding that

a noncitizen “has no constitutional right to be advised of his eligibility for discretionary

relief” such as pre-conclusion voluntary departure.

.

After a round of supplemental briefing, Fernandez Sanchez now concedes that

“Herrera-Pagoada forecloses [his] argument that he was denied due process by the

[immigration judge’s] failure to advise him of his eligibility for voluntary departure.” Supp.

Response Br. at 2. However, he claims he “suffered another due process violation, namely

the denial of his right to appeal the [immigration judge’s] removal order” via an

uninformed—and apparently fabricated—waiver.

(emphasis added). Because this

“violation has also prejudiced him,” he urges us to affirm the district court on this

alternative ground. Id.; see United States ex rel. Drakeford v. Tuomey,

, 375

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(4th Cir. 2015) (“[W]e may affirm a district court’s ruling on any ground apparent in the

record.”).

II.

A noncitizen charged with illegal reentry pursuant to

(a) must, as a

matter of due process, be able to “collaterally attack the propriety of the[ir] original

deportation order in the later criminal proceeding.” El Shami,

(citing

United States v. Mendoza-Lopez,

, 838–39 (1987), superseded by statute as

stated in United States v. Palomar-Santiago,

(2021) (citing

(d))). To successfully attack the underlying deportation order, the defendant must

demonstrate that (1) he “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 [him] of the opportunity for judicial review; and (3) the

entry of the order was fundamentally unfair.”

(d). “[I]f the defendant

satisfies all three requirements, the illegal reentry charge must be dismissed as a matter of

law.” El Shami,

.

The Government concedes that Fernandez Sanchez has satisfied the first two

requirements. The only question presented on appeal, therefore, is whether he has also

satisfied the third—showing that his deportation order was “fundamentally unfair.” To

establish fundamental unfairness, “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.” United States v. Wilson,

(4th Cir.

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2003), abrogated on other grounds by Lopez v. Gonzales,

(2006). We consider

each prong in turn.

A.

Typically, the first question before us would be whether Fernandez Sanchez’s

uninformed and illusory waiver of his right to appeal violated his due-process rights.

Fernandez Sanchez suggests that such an inquiry is unnecessary, however, because the

Government failed to timely or adequately contest this issue, thereby waiving it. We agree.

In general, “[a] party waives an argument by failing to present it in its opening

brief.” Grayson O Co. v. Agadir Int’l LLC,

(4th Cir. 2017); see also Fed.

R. App. P. 28(a)(8)(A) (requiring the appellant’s opening brief to contain their “contentions

and the reasons for them, with citations to the authorities and parts of the record on which

the appellant relies”). Yet as the Government conceded at oral argument, it did not address

Fernandez Sanchez’s right-to-appeal due-process argument until its supplemental reply

brief.

Though that alone would normally doom the Government’s argument, we need not

rely on that basis because even looking past the Government’s delay, we still conclude the

Government waived its argument. That’s because a party also waives an issue by “failing

to ‘“develop [its] argument”—even if [its] brief takes a passing shot at the issue.’”

Grayson O,

(quoting Brown v. Nucor Corp.,

(4th Cir.

2015) (Agee, J., dissenting)). Here a “passing shot” is all that the Government took by

effectively making a due-process “argument” that boils down to a single sentence in its

brief. See Supp. Reply Br. at 3 (“[I]f the [immigration judge] has no constitutional duty to

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inform the [noncitizen] about the possibility of applying for voluntary departure under

Herrera-Pagoada, there cannot be an error of constitutional dimension in failing to inform

the [noncitizen] that he can appeal the alleged failure to inform.”). Given the complexity

of the issue, we cannot say this single sentence suffices to preserve the Government’s

argument. 6 And we decline the Government’s unspoken invitation to wade through the

case law and make its argument for it. 7

B.

Because the Government waived any argument on the due-process issue, we assume

that the immigration judge’s denial of his appellate rights constituted a due-process

6 Further, even this one sentence is not responsive to Fernandez Sanchez’s argument. He does not just contend that the immigration judge failed to inform him of his right to appeal. Instead, he argues more broadly that the immigration judge effectively denied his right to appeal by “[o]btaining an invalid waiver” of said appellate rights. Supp. Response Br. at 3–4 (quoting United States v. Gomez,

(9th Cir. 2014)). 7 As Fernandez Sanchez notes in his supplemental response brief, the Ninth Circuit has repeatedly found that an “invalid waiver of the right to appeal a deportation order violates due process.” Gomez,

; see also United States v. Pallares-Galan,

(9th Cir. 2004) (finding a due-process violation where an immigration judge informed a noncitizen of his right to appeal but failed to give him adequate time to consider his options or follow up once the noncitizen conveyed “significant confusion about what the appeals process would have entailed”); United States v. Lopez-Vasquez,

, 753–54 (9th Cir. 1993) (per curiam) (holding that a noncitizen’s silent waiver of his appellate rights violated due process because it was neither “considered” nor “intelligent”). We have also recognized the “due process implications” of a noncitizen’s “waiver of his appellate rights” in a similar setting. Narine, 559 F.3d at 249–50 (first quoting In re Ocampo-Ugalde,

(B.I.A. 2000)). The Government’s one-sentence due-process argument ignores these decisions, however, leaving us guessing whether any contrary authority exists. And while we could certainly scour Westlaw for contrary cases or attempt to distinguish those cases cited by Fernandez Sanchez, that is not our role.

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violation and proceed to the second step of the § 1326(d) “fundamental unfairness” inquiry.

See United States v. Vasquez Flores, No. 19-4190,

, at *3 (4th Cir. Aug.

16, 2021) (per curiam) (evaluating only the second step of this inquiry where that was the

only issue disputed by the parties). Accordingly, we turn to the question of whether

Fernandez Sanchez has shown that the immigration judge’s denial of his appellate rights

prejudiced him. We conclude that he has.

To satisfy the second step of the fundamental-unfairness inquiry, “a defendant must

show that he suffered actual prejudice as a result of the due process violations in the

removal proceedings.” United States v. Lopez-Collazo,

(4th Cir. 2016)

(emphasis omitted). “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.”

However, that link need not be ironclad—a defendant need not show

with certainty that the violation altered the outcome. So long as the defendant shows that

“but for the [due-process] errors complained of, there was a reasonable probability that he

would not have been deported,” the prejudice prong is satisfied. El Shami,

(emphasis added). A “reasonable probability is a probability sufficient to undermine

confidence in the outcome.” United States v. Terrazas-Silas,

, 847 (4th

Cir. 2020) (per curiam) (quoting United States v. Fulks,

(4th Cir. 2012),

in the context of a § 1326(d) prejudice evaluation).

Though the parties agree on this standard, they disagree on the applicable standard

of review. The Government urges us to review the district court’s prejudice finding—or at

least those portions still relevant to the right-to-appeal due-process violation—de novo,

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consistent with our 2003 decision in Wilson and our 2005 decision in El Shami. See Wilson,

(“This court reviews Wilson’s challenge to his conviction [via

(d)] de novo.”); El Shami,

(“This Court reviews de novo the denial

of a motion to dismiss a charge under

(d).”).

Fernandez Sanchez, by contrast, argues that we should apply the more nuanced

standard of review adopted in our 2016 decision in Lopez-Collazo, which relied on earlier

motion-to-dismiss-an-indictment case law. See Lopez-Collazo,

(“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.”

(citing United States v. Woolfolk,

(4th Cir. 2005))). And since some

portions of the district court’s prejudice analysis rest on discrete factual findings, the

argument goes, we should review those underlying determinations for clear error only.

Our sister circuits have largely coalesced around a de novo standard when it comes

to reviewing a district court’s overall prejudice finding for a § 1326(d) collateral attack. 8

8 See United States v. Luna,

(1st Cir. 2006) (holding “that a district court’s determination of whether a defendant has established prejudice pursuant to

(d)(3) is subject to de novo review”); United States v. Scott,

(2d Cir. 2005) (“Because [a § 1326(d) inquiry] entails mixed questions of law and fact, we review de novo the district court’s denial of [the defendant’s] motion to dismiss the indictment.”); United States v. Ubaldo-Figueroa,

(9th Cir. 2004) (“We review de novo [‘]the denial of a motion to dismiss an

indictment when the motion to dismiss is based on alleged due process defects in an underlying deportation proceeding.’” (quoting United States v. Muro-Inclan,

(9th Cir. 2001))); United States v. Aguirre-Tello,

(10th Cir. 2004) (en banc) (“When a previous deportation proceeding is attacked on constitutional grounds, we are presented with a mixed question of law and fact, which we review de novo.”).

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However, some courts apply clear-error review to the factual findings underlying the

overall prejudice determination. 9

We need not decide today which of these standards of review applies, because the

result is the same under either approach. Whether we review the relevant portions of the

district court’s prejudice analysis for clear error or consider them afresh, we conclude that

Fernandez Sanchez has established a reasonable probability that he would not have been

deported but for the immigration judge’s denial of his appellate rights.

Both parties agree that for Fernandez Sanchez to make this showing, he must at least

establish that (1) he would have successfully appealed if given the opportunity and (2) he

would have sought and been granted voluntary departure on remand. The Government

further argues that Fernandez Sanchez must also show (3) that he would actually have

voluntarily departed. We proceed to analyze each step in turn. 10

9 See United States v. Ramirez,

(8th Cir. 2020) (“When reviewing a motion to dismiss an indictment under § 1326(d), we apply a clear error standard to the district court’s findings of fact, but we review de novo whether the facts establish a due process defect.”); United States v. Silvestre-Gregorio,

(6th Cir. 2020) (applying de novo review to the “denial of a motion to dismiss an indictment and a collateral attack upon a prior removal order underlying a conviction for unlawful reentry,” but holding that the district court’s underlying “factual findings” are still reviewed for “clear error” (first quoting United States v. Zuñiga-Guerrero,

(6th Cir. 2006))). 10 In conducting this analysis, we have not attempted to determine (nor do we think it would be appropriate to attempt to determine) a particular probability by which each step in this chain of causation must be shown. Instead, we have found that each has been established with sufficient surety for us to ultimately conclude that there is a reasonable probability Fernandez Sanchez would not have been deported but for the immigration judge’s denial of his appellate rights. See El Shami,

.

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1.

To start, we examine whether Fernandez Sanchez would have successfully

appealed, given the opportunity. We conclude he would have.

As a threshold matter, Fernandez Sanchez has sufficiently established that he would

have appealed if given the chance. At the hearing, Fernandez Sanchez stated that he did

not want to be deported and explained that he wished to remain in the United States with

his minor children and their mother. An appeal offered the only realistic avenue of

accomplishing both things. We also note that Fernandez Sanchez both exercised his right

to an immigration hearing and requested reconsideration of the immigration judge’s pretrial

custody decision, indicating a willingness to utilize the legal process made available to

him. So, we think it highly probable that Fernandez Sanchez would have appealed the

immigration judge’s removal order if given the opportunity.

We also believe that Fernandez Sanchez would have been successful on appeal. The

Board of Immigration Appeals has held that an immigration judge’s failure to consider a

potentially eligible noncitizen for pre-conclusion voluntary departure is reversible error.

In re Cordova,

(B.I.A. 1999) (en banc) (faulting the immigration

judge for failing to inform an apparently eligible—and counseled—noncitizen of the

conditions under which the noncitizen could apply for voluntary departure and, as a result,

denying the noncitizen “a meaningful opportunity to apply for this relief”). The

Government concedes that the immigration judge made the same error here. See Opening

Br. at 20 n.4 (admitting that the immigration judge “was not in compliance with binding

caselaw,” specifically Cordova); Reply Br. at 15 (same). Accordingly, we conclude that,

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had the immigration judge not denied Fernandez Sanchez’s right to appeal, he would have

successfully appealed his removal order and the Board of Immigration Appeals would have

remanded the case for further proceedings.

2.

Next, we consider whether Fernandez Sanchez would have been granted pre-

conclusion voluntary departure on remand. Like the district court, we have little trouble

answering in the affirmative.

To qualify for pre-conclusion voluntary departure, a noncitizen must (1) make a

request for such voluntary departure “prior to or at the master calendar hearing at which

the case is initially calendared for a merits hearing”; (2) make “no additional requests for

relief”; (3) concede removability; (4) waive appeal of “all issues”; and (5) not have been

convicted of an aggravated felony.

(b)(1)(i) (2011). If a noncitizen

satisfies all five regulatory factors, they must also show that they merit a favorable exercise

of discretion. In re Arguelles-Campos,

(B.I.A. 1999) (en banc)

(holding that “discretion remains a required element of voluntary departure”).

The Government does not dispute that Fernandez Sanchez meets the second, third,

and fifth regulatory requirements. Nor does it contest the district court’s finding that

Fernandez Sanchez would have merited a favorable exercise of discretion. The

Government does argue, however, that Fernandez Sanchez would not have satisfied the

first and fourth regulatory requirements on remand. We consider both of these elements in

turn.

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i.

The Government first asserts that Fernandez Sanchez would have been unlikely to

request voluntary departure on remand. 11 As support, it notes that Fernandez Sanchez “did

not request voluntary departure” at his original hearing, which suggests he would be

unlikely to request it on remand. 12 Opening Br. at 24. But as both parties agree, Fernandez

Sanchez—who was acting pro se—was not advised that voluntary departure was an option

at his original hearing. And it is difficult to imagine why we would consider a noncitizen’s

11 The Government does not suggest that Fernandez Sanchez would be unable to request voluntary departure on remand because such a request would not be “prior to or at the master calendar hearing.” To be sure, a master calendar hearing “is typically a[] [noncitizen]’s first appearance before an [immigration judge] in removal proceedings.” Mejia v. Sessions,

, 577 n.2 (4th Cir. 2017) (emphasis added). Though a hearing following remand from the Board of Immigration Appeals would, in a literal sense, be Fernandez Sanchez’s second hearing, we do not believe that would forestall him from timely requesting pre-conclusion voluntary departure on remand. After all, it was the immigration judge’s failure to inform him of this relief at his first hearing that “denied [him] a meaningful opportunity to apply for this relief” at the earliest opportunity. Cordova, 22 I. & N. Dec. at 972. But since the Government does not contest the point, we consider it waived. 12 The Government also half-heartedly argues that Fernandez Sanchez has never stated—in either district court or appellate filings—that “he would have actually applied for voluntary departure” on remand. Reply Br. at 21. In effect, the Government seems to be faulting Fernandez Sanchez for failing to make self-serving post-hoc arguments about what he would have done on remand. We are doubtful that he failed to do so. See Response Br. at 37 n.8 (noting that Fernandez Sanchez has argued from the very start that “he would have been granted voluntary departure,” which “necessarily includes the component that, once properly advised, he would have requested it”). But even if he had, we fail to see how the lack of such post-hoc arguments is “evidence” that Fernandez Sanchez would not have requested and received voluntary departure on remand. Our prejudice inquiry concerns the facts at the time of the 2011 removal hearing—not self-serving statements made a decade later. To the extent that the Government is claiming that Fernandez Sanchez has waived the argument that he would have requested voluntary departure, we again note that we may affirm “on any ground apparent in the record.” Drakeford,

.

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failure to request relief in these circumstances as evidence that, properly advised, the

noncitizen would later decide not to request the same relief.

At any rate, as the district court observed, other evidence in the record strongly

suggests that Fernandez Sanchez would have requested pre-conclusion voluntary departure

on remand. Fernandez Sanchez,

, at *9 (observing that “taking

advantage of voluntary departure would have had clear pragmatic [and beneficial]

consequences for Fernandez Sanchez”). As noted above, it is undisputed that Fernandez

Sanchez’s minor children lived in the United States, that he supported them, that the

children’s mother also lived in the United States, and that Fernandez Sanchez wished to

continue living with them. If he had been properly informed of the benefits of voluntary

removal, he would have known that his best bet for permanently reuniting with his family

would be voluntary departure. 13 See Dada v. Mukasey,

(2008) (observing

13 Though the Government does not raise the issue, it is worth noting that voluntarily departing would not have allowed Fernandez Sanchez to lawfully return to the United States any sooner. That’s because whether or not he voluntarily departed, Fernandez Sanchez would have been barred from seeking lawful readmission to the United States for ten years. See

(a)(9)(A)(ii) (2011) (barring noncitizens involuntarily deported following a removal hearing from seeking readmission for ten years);

§ 1182(a)(9)(B)(i) (barring noncitizens who, like Fernandez Sanchez, have “been unlawfully present in the United States for one year or more,” from seeking readmission for ten years, even if they voluntarily departed). However, if Fernandez Sanchez had voluntarily departed, he would not have been subject to a § 1326 criminal charge based on his 2011 removal order—a charge that could separate him from his family for years of prison time, followed by another deportation. A future application for lawful admission may also have been looked upon more favorably had he departed voluntarily rather than being deported. Additionally, voluntary departure would have allowed Fernandez Sanchez to avoid “extended detention pending completion of travel arrangements” and allowed him to “choose when to depart (subject to certain constraints).” Dada v. Mukasey,

,

18 USCA4 Appeal: 20-4061 Doc: 93 Filed: 08/23/2022 Pg: 19 of 24

that “by departing voluntarily the [noncitizen] facilitates the possibility of readmission”).

Therefore, we are comfortable concluding that Fernandez Sanchez would have requested

voluntary departure on remand.

ii.

The Government also asserts that Fernandez Sanchez would not have been able to

meet the voluntary-departure requirement that he waive appeal of all issues if he had

already, in fact, appealed. That argument is fundamentally flawed.

To start, the Government’s argument overlooks on-point administrative precedent.

In In re Cordova, the Board of Immigration Appeals interpreted the very same waiver

requirement and held that a noncitizen’s “attempt to correct” an immigration judge’s failure

to inform him of his eligibility for voluntary departure “through an appeal should not cause

him to lose the right to apply for voluntary departure [on remand] simply because his

request was improperly denied.” Cordova, 22 I. & N. Dec. at 970 (emphasis added). It is

easy to see why—if the Government’s reading held sway, then noncitizens would be stuck

in a classic Catch-22: live with the immigration judge’s error and therefore be prevented

from seeking voluntary departure, or attempt to appeal said error and foreclose your ability

to seek voluntary departure anyway.

The voluntary-departure regulation’s plain text does not require such a Kafkaesque

result. In fact, it commands the opposite. The relevant provision states (now, as it did at the

11 (2008). In other words, he could have actually said a proper goodbye to his family before departing.

19 USCA4 Appeal: 20-4061 Doc: 93 Filed: 08/23/2022 Pg: 20 of 24

time of the hearing in 2011) that a noncitizen “may be granted voluntary departure . . . only

if” he or she “[w]aives appeal of all issues.”

(b)(1)(i)(D) (emphasis

added). Critically, “waives” is written in the present tense. And it is well settled that the

present tense is an indicator that the text captures conduct occurring “in the present or the

future, not in the past.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,

(1987) (emphasis added). Thus, to be granted voluntary departure, a noncitizen

must agree to waive future appeals, not demonstrate that they have not appealed in the

past. 14

With that cleared up, we easily conclude that Fernandez Sanchez would have

waived his right to future appeals in order to pursue voluntary departure. The Government

does not challenge any other aspects of the voluntary-departure inquiry, including the

district court’s conclusion that there is a reasonable probability such discretionary relief

would have been granted. Fernandez Sanchez,

, at *9. Because we reject

the Government’s contentions that Fernandez Sanchez would not have been eligible for

voluntary departure, and because the Government has waived any other arguments against

that eligibility by failing to raise them before us, we conclude that Fernandez Sanchez

would have been granted voluntary departure on remand.

This construction is further supported by other regulations which allow a 14

noncitizen to appeal an immigration judge’s decision “whether to grant voluntary departure.”

(g) (2011); cf.

§ 1240.15 (“[A]n appeal shall lie from a decision of an immigration judge to the Board of Immigration Appeals.”). There would be no reason to allow such an appeal if doing so automatically foreclosed the very relief sought by the appeal.

20 USCA4 Appeal: 20-4061 Doc: 93 Filed: 08/23/2022 Pg: 21 of 24

3.

The Government counters that even if the immigration judge granted voluntary

departure and declined to deport Fernandez Sanchez, Fernandez Sanchez still must show

that he would have actually departed in a timely fashion. We disagree.

The Government observes that under our precedent, a noncitizen must “show a

reasonable probability he would have not actually been deported.” Supp. Reply Br. at 3

(citing El Shami,

). The Government concedes that if Fernandez Sanchez

were granted voluntary departure, he would have avoided immediate deportation.

However, the Government notes that “an [immigration judge] who grants voluntary

departure must ‘also enter an alternate order [of] removal,’ which will automatically

become a valid deportation order if the [noncitizen] does not comply timely with voluntary

departure.” Reply Br. at 21 (quoting

(d)). In other words, “if [Fernandez]

Sanchez could not actually leave the country in a timely manner, he would have been

deported.”

According to the Government, this means Fernandez Sanchez must show

not only that he would have been granted voluntary departure, but also that he “actually

would have bought a ticket and voluntarily left the county.” 15

And the Government

15 The Government cites our opinion in El Shami in support of this point. El Shami held that a noncitizen must show “there was a reasonable probability that he would not have been deported.”

. But it does not stand for the proposition the Government puts forward here: that, to show prejudice, an immigrant in Fernandez Sanchez’s shoes must show that, but for the due-process violation, they would have avoided even eventual deportation via automatic operation of an alternate order of removal. That question was not before the Court in El Shami.

21 USCA4 Appeal: 20-4061 Doc: 93 Filed: 08/23/2022 Pg: 22 of 24

contends that Fernandez Sanchez could not have done so because he conceded that he did

not have the funds to depart at the time of his hearing.

We disagree. Fernandez Sanchez’s statement that he did not have funds “now”—at

that moment, in the hearing—is not dispositive, because having the “means to depart the

United States” is an element only of post-conclusion voluntary departure, not the pre-

conclusion voluntary departure Fernandez Sanchez would have been seeking on remand. 16

Arguelles-Campos, 22 I. & N. Dec. at 817 (noting that a noncitizen “need not show that

he . . . has the financial means to depart the United States” to receive pre-conclusion

voluntary departure); see 8 U.S.C. § 1229c(a)(1), (b)(1)(D) (2011);

(b),

(c)(1)(iv) (2011). All that Fernandez Sanchez needed to show is that, “but for” the

immigration judge’s denial of his appellate rights, “there was a reasonable probability that

he would not have been deported” on July 22, 2011, pursuant to the order entered on the

day of his hearing. El Shami,

. He has made that showing.

True, it is theoretically possible that Fernandez Sanchez would have been

subsequently deported via the alternate order of removal. However, that subsequent

deportation would not have been caused by the immigration judge’s failings, but rather by

Fernandez Sanchez’s independent failure to timely depart in accordance with the

immigration judge’s grant of discretionary relief. In other words, the chain of causation

16 Upon being granted pre-conclusion voluntary departure, Fernandez Sanchez would have had time—up to 120 days, at the immigration judge’s discretion, 8 U.S.C. § 1229c(a)(2)(A) (2011)—to gather the funds necessary to reach Mexico, a trip he could have undertaken overland from his home in Virginia.

22 USCA4 Appeal: 20-4061 Doc: 93 Filed: 08/23/2022 Pg: 23 of 24

connecting the immigration judge’s due-process violation to Fernandez Sanchez’s

deportation would be broken. See Evans v. Chalmers,

(4th Cir. 2012)

(holding that the “subsequent acts of independent decision-makers . . . may constitute

intervening superseding causes that break the causal chain between” one event and

another). And since the prejudice prong is concerned with the impact of the immigration

judge’s due-process failings, not the respondent’s, it would be odd to require the

respondent to also show they would not have prejudiced themselves. 17 Further, at a more

fundamental level, our concern under § 1326(d) is “the validity of the deportation order”

under which Fernandez Sanchez was actually deported—not the validity of a hypothetical

alternate deportation order that was never entered due to the immigration judge’s own

errors.

(d); see

§ 1326(a)(1).

17 Such a showing would also be impossible to make in the mine run of cases. Because the means to depart is not an element of pre-conclusion voluntary departure, the immigration judge would normally have no reason to develop the record on this issue. Cf. Arevalo Quintero v. Garland,

(4th Cir. 2021) (broadly holding that an immigration judge has a “duty to develop the record in immigration court proceedings,” based primarily on the text of the Immigration and Nationality Act). The only reason this issue was developed at all in Fernandez Sanchez’s hearing appears to be the immigration judge’s mistaken belief that ability to pay for departure is an element of pre-conclusion voluntary departure. Barring a similar error, there will be no way for a defendant to show on collateral attack that they could have financed their voluntary departure, based upon the record as developed before the immigration judge. Thus, the Government’s view would create an incongruous situation in which neither the immigration judge nor the noncitizen would have any reason to develop the record as to whether the noncitizen would have the means to depart if granted voluntary departure—and yet, for that very reason, the noncitizen would be unable to collaterally challenge any error in the immigration hearing related to voluntary departure. For the reasons already given, § 1326(d) commands no such bizarre result.

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Ultimately, we agree with Fernandez Sanchez that there is a reasonable probability

that, but for the denial of his appeal rights, he would not have been deported. See El Shami,

. Accordingly, we conclude that his 2011 removal hearing was

fundamentally unfair.

III.

For the foregoing reasons, we affirm the district court’s dismissal of Fernandez

Sanchez’s indictment.

AFFIRMED

24