US v. Bonifacio Sanchez, No. 20-4061 (4th Cir. 2022)
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Defendant 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 Defendant 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 Defendant had waived his right to appeal. Upon discovering him in the country once again in 2018, the Government opted to arrest and charge him with illegal reentry. Defendant moved to dismiss his indictment, arguing that the 2011 deportation order underlying his Section 1326 charge was invalid.
The district court agreed, finding that the immigration judge’s failure to advise Defendant regarding his eligibility for voluntary departure rendered his 2011 removal fundamentally unfair. Defendant 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. The Fourth Circuit agreed and affirmed the dismissal of Defendant’s indictment.
The court concluded that Defendant would have been granted voluntary departure on remand. The court rejected the Government’s contentions that Defendant would not have been eligible for voluntary departure. Further, the Government has waived any other arguments against that eligibility by failing to raise them before the court. Ultimately the court agreed with Defendant that, but for the denial of his appeal rights, he would not have been deported. Accordingly, the court concluded that his 2011 removal hearing was fundamentally unfair.
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