Vacating Illegal Reentry Conviction Based on Flawed Deportation Proceedings

US v. Sanchez: Sanchez, a native of Mexico, was deported from the United States in 2011 “following a four-minute removal hearing.” At that hearing, the immigration judge did not inform Sanchez of his eligibility for voluntarily removal or his right to appeal. However, in a written order, the judge stated that Sanchez had actually waived his right to appeal. In 2018, Sanchez was found in the United States and charged with illegal reentry. He successfully moved to dismiss the indictment on the grounds that the immigration judge’s failure to inform Sanchez of voluntary removal made his deportation proceeding fundamentally unfair.

The Government appealed and, while the case was pending, the Fourth Circuit decided a case which “effectively rejected the district court’s reasoning.” Nonetheless, Sanchez argued he was entitled to relief on an alternate ground, that the immigration judge had denied his right to appeal. The Fourth Circuit agreed and affirmed the district court’s grant of the motion to dismiss. The court found that the Government had waived the issue of whether Sanchez’s “uninformed and illusory waiver of his right to appeal violated his due-process rights” by failing to address it until its supplemental reply brief (and even then by doing so only in a “passing shot” single sentence). The court then rejected the Government’s argument that the failure had not prejudiced Sanchez, concluding that he had shown that, but for the immigration judge’s error, Sanchez would not have been deported.