                              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
