CA4: IJ Milo Bryant Violated Respondent's Due Process Rights; Illegal Reentry Indictment Dismissed

US v. Fernandez Sanchez

"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. ... [O]ur 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. 8 U.S.C. § 1326(d); see id. § 1326(a)(1). 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, 434 F.3d at 665. Accordingly, we conclude that his 2011 removal hearing was fundamentally unfair. For the foregoing reasons, we affirm the district court’s dismissal of Fernandez Sanchez’s indictment."

[Hats off to Federal Defenders Erin Trodden (argued) and Juval Scott (on brief)!]