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United States of America v. ANGEL ORLANDO VASQUEZ FLORES, a/k/a Angel Vasquez Flores
Case Number: 19-4190
Judge: PER CURIAM
Court: UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Plaintiff's Attorney: Thomas T. Cullen, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY
Philadelphia, PA - Criminal defense lawyer represented defendant with a illegal reentry charge.
Born in Honduras in 1989, Vasquez Flores traveled to the United States in 2002 to
escape an abusive father. In 2011, Vasquez Flores came to the attention of immigration
agents when he was arrested for public intoxication.1
Those agents located and served him
with a Notice to Appear, which charged him under the Immigration and Nationality Act
with being a removable noncitizen present in the United States without being admitted or
paroled. Complying with the Notice, Vasquez Flores appeared for a removal hearing
before the IJ on November 23, 2011.
1 Vasquez Flores had some driving infractions, but no criminal history.
For the entirety of the hearing, Vasquez Flores, a non-English speaker, spoke to the
IJ through a translator. The IJ first informed Vasquez Flores of his right to an attorney.
Vasquez Flores asked whether he needed one to proceed, and the IJ replied that he did not.
Vasquez Flores said he did not know if he wanted an attorney and then asked if he had a
right to bail. The IJ ignored the question and asked again whether Vasquez Flores wanted
an attorney. After pausing to consider, Vasquez Flores replied “no.” J.A. 70, Track 1, at
The IJ then sought some basic information. In response to questioning, Vasquez
Flores stated he was not a United States citizen but was a Honduran citizen who crossed
the border into the United States without permission in 2002. Before immigration agents
detained Vasquez Flores, he resided with friends—some of whom were legal residents of
the United States. Vasquez Flores told the IJ that he had a one-year-old child born in
Virginia with his American girlfriend.
The IJ asked if Vasquez Flores and his girlfriend
had ever discussed getting married. Vasquez Flores replied that they had. The IJ then
stated that even if Vasquez Flores had married his girlfriend, he “can’t stay here.” J.A. 70,
Track 2, at 0:00. The IJ warned Vasquez Flores that he would have to file marriage papers
in Honduras before returning as the legal spouse of a United States citizen.
Replying to a question from the IJ, Vasquez Flores stated that he would voluntarily
depart the United States if the IJ gave him time to do so. In a seeming non-sequitur, the IJ
2 Vasquez Flores was unsure whether the mother was a United States citizen or a
lawful permanent resident.
then stated that bond would be $5,000 and asked Vasquez Flores if it was possible that
someone would pay it for him. Vasquez Flores responded, “I don’t have any money here.
It will have to be less.” J.A. 70, Track 2, at 0:52. The IJ replied, “Well, it’s not going to
be less.” J.A. 70, Track 2, at 0:56. The IJ then asked whether Vasquez Flores’s girlfriend
or someone else would be willing to buy him an airline ticket to leave. Vasquez Flores,
after some consideration, replied, “no.” J.A. 70, Track 2, at 1:23.
After this discussion, the IJ once again admonished Vasquez Flores that if his
girlfriend wanted to marry him, she could go down to Honduras to do so and file paperwork
there. If they were approved, Vasquez Flores could return to the United States with a visa.
After that, the IJ asked if Vasquez Flores had any other questions. Vasquez Flores stated,
“I can pay a lower bail.” J.A. 70, Track 2, at 2:13. The IJ replied: “Well, I know, but I’m
not giving you a lower bail. . . . In fact, now that I’ve signed a deportation order, you don’t
have a bail at all. . . . Good luck to you.” J.A. 70, Track 2, at 2:15.
The hearing lasted seven minutes and thirty-seven seconds. The conversation about
bail and voluntary departure was no more than ninety seconds.
Seven years later, on August 8, 2018, a federal grand jury returned a one-count
indictment charging Vasquez Flores with illegal reentry in violation of 8 U.S.C. § 1326.
Vasquez Flores moved to dismiss the indictment based on the same arguments we rejected
in United States v. Cortez, 930 F.3d 350 (4th Cir. 2019)—that “a Notice to Appear that
lacks the date and time of a removal hearing fail[s] to vest the immigration court[s] with
jurisdiction and thus cannot serve as the basis of an illegal reentry prosecution.” Opening
Br. at 17. After reviewing the transcript of the 2011 deportation hearing, Vasquez Flores
also filed supplemental briefing arguing that the § 1326 charge should be dismissed
because he had been denied due process during his 2011 deportation hearing.
On January 25, 2019, the district court denied the motion to dismiss. Vasquez Flores
then pled guilty to the charge pursuant to a written plea agreement, reserving his right to
appeal the denial of his motion to dismiss. The district court sentenced Vasquez Flores to
three months’ imprisonment. He timely appealed. We held the appeal in abeyance,
pending a decision in Cortez. Once Cortez was decided—foreclosing any arguments
Vasquez Flores might make about a deficient Notice to Appear3
—the parties submitted
initial briefing. We also directed the parties to file supplemental briefs addressing the scope
of an IJ’s duty to develop the record.
3 After reviewing supplemental briefing, we agree with the government that the
Supreme Court’s recent decision in Niz-Chavez v. Garland, 151 S. Ct. 1474 (2021), has no
impact on this determination. Niz-Chavez extended the Court’s prior ruling in Pereira v.
Sessions, 138 S. Ct. 1205 (2018), to explain “[w]hat qualifies as a notice to appear
sufficient to trigger the stop-time rule” in the context of 8 U.S.C. § 1229. Id. at 1479
(“Today’s case represents the next chapter in the story [after Pereira].”). And as we stated
in Cortez, Periera does not control because in the context of removal proceedings, “[i]t is
the regulatory definition of ‘notice to appear,’ and not § 1229(a)’s definition that controls
in determining when a case is properly docketed with the immigration court under 8 C.F.R.
§ 1003.14(a).” 930 F.3d at 363. Niz-Chavez’s reasoning does not undermine the reasoning
in Cortez, and thus Vasquez Flores’s argument as to his Notice to Appear remain
“This Court reviews de novo the denial of a motion to dismiss a charge under 8
U.S.C. § 1326(d).” United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005).
Vasquez Flores argues that his § 1326 conviction cannot stand because it is
premised on his 2011 deportation hearing, which he contends is invalid. “Because a
deportation order is an element of the offense of illegal reentry [under § 1326(a)], the
Supreme Court has recognized that an alien can collaterally attack the propriety of the
original deportation order in the later criminal proceeding.” El Shami, 434 F.3d at 663
(citing United States v. Mendoza-Lopez, 481 U.S. 828, 838–39 (1987)). To succeed on
collateral attacks of prior deportation orders, defendants must show (1) exhaustion of
administrative remedies (or excusal from the exhaustion requirement); (2) improper
deprivation of the opportunity for judicial review (or excusal); and (3) that the entry of the
deportation order was fundamentally unfair. El Shami, 434 F.3d at 663; 8 U.S.C.
As the government conceded in the district court, the IJ did not advise Vasquez
Flores of his appellate rights at the hearing, even though the immigration order stated
Vasquez Flores “waived” his right. J.A. 55. Based on this underlying record, both parties
agree that Vasquez Flores has satisfied the first two prongs of the three-part test under
§ 1326(d). See Mendoza-Lopez, 481 U.S. at 839–40 (holding that an IJ’s failure to
adequately advise a noncitizen of his right to appeal “violated due process,” was a
“complete deprivation of judicial review,” and could “not be used to enhance the penalty
for unlawful entry under § 1326”).
Thus, this case turns on whether Vasquez Flores can satisfy the third prong of the
§ 1326(d) test: that the entry of the 2011 deportation order was fundamentally unfair. To
demonstrate fundamental unfairness, “a defendant must show that (1) his due process rights
were violated . . . , and (2) he suffered prejudice as a result of the defects.” United States
v. Wilson, 316 F.3d 506, 510 (4th Cir. 2003), overruled on other grounds by Lopez v.
Gonzales, 549 U.S. 47 (2006). Here, the parties only dispute whether Vasquez Flores can
satisfy the second requirement: that he can “establish prejudice for purposes of the
fundamental unfairness inquiry.” Resp. Br. at 17 n.7.
To establish prejudice, a defendant “must show that, but for the errors complained
of, there was a reasonable probability that he would not have been deported.” El Shami,
434 F.3d at 665. Vasquez Flores contends that had he been properly advised of his appeal
rights, he would have appealed the IJ’s decision to the Board of Immigration Appeals
(BIA). He then argues that because he would have paid for a plane ticket to leave the
United States—provided his bond was lowered—there is a reasonable probability the BIA
would have reversed the IJ and allowed Vasquez Flores to voluntarily depart from the
To show his entitlement to voluntary departure at the 2011 deportation hearing,
Vasquez Flores was required to “establish by clear and convincing evidence that [he]
ha[d] the means to depart the United States and intend[ed] to do so.” 8 U.S.C.
§ 1229c(b)(1)(D). The district court ruled that Vasquez Flores did “not have a reasonable
probability of establishing” this burden “based on the record.” J.A. 133.4
But herein lies
the issue. Vasquez Flores argues that the record was insufficient because the IJ failed in
his duty to develop the record. Vasquez Flores asserts that, had the IJ properly developed
the record, Vasquez Flores could have established by clear and convincing evidence that
he could voluntarily depart. The IJ intermixed questions about Vasquez Flores’s ability to
voluntarily depart with a determination that his bond would be $5,000. But Vasquez Flores
argues that had the IJ done his duty by separating these determinations and inquiring about
how much money Vasquez Flores had, he could have shown by clear and convincing
evidence that he was able to pay for a lower bond and a plane ticket.
Thus, whether Vasquez Flores can prevail on this argument depends on the extent
to which we believe the IJ failed to adequately develop the record at Vasquez Flores’s 2011
deportation hearing. Unlike Article III judges, IJs behave as a participant in immigration
proceedings. Indeed, IJs have a statutory duty to “administer oaths, receive evidence, and
interrogate, examine, and cross-examine the alien and any witnesses.” 8 U.S.C.
§ 1229a(b)(1). Drawing from this statutory language, the BIA has recognized that “[i]t is
appropriate for immigration judges to aid in the development of the record, and directly
question witnesses, particularly where an alien appears pro se and may be unschooled in
the deportation process.” In re J-F-F-, 23 I. & N. Dec. 912, 922 (B.I.A. 2006). Joining
several sister circuits, we recently held that an IJ’s duty to develop the record is an
4 Like the district court, we assume that “the IJ determined that Vasquez Flores did
not qualify under the last prong of the statute allowing voluntary departure, a ruling that
would be appealable to both the BIA and to a federal court.” J.A. 132.
affirmative one. See Quintero, 998 F.3d at 626 (holding that “immigration judges have a
legal duty to fully develop the record in the cases that come before them”—a duty rooted
in the text of the Immigration and Nationality Act).5
There is no bright line test for determining whether an IJ has adequately developed
the record, as “what the aforesaid duty requires of an immigration judge inevitably depends
on the particulars of each case.” Id. at 630. But in Quintero, we outlined “general
principles to provide guidance to” IJs. Id. The affirmative duty “requires more than just
asking a specific number of relevant questions.” Id. at 629. Instead, IJs “have a duty to
probe into, inquire of, and elicit all facts relevant to a respondent’s claims.” Id. (collecting
circuit-court cases). And moreover, “even where an immigration judge ‘ask[s] relevant
questions,’ ‘the superficial quality of the questioning’ may nonetheless deprive a
noncitizen of a full and fair hearing.” Id. (alteration in original) (quoting Mendoza-Garcia,
918 F.3d at 507). “Immigration judges must also seek clarification as needed; help the
applicant identify and delineate [bases for relief] supported by his or her factual
circumstances; and ultimately consider those [bases for relief].” Id. at 634.
5 The government argues that “especially in voluntary departure cases . . . [the duty
to develop the record] does not rise to the level of a Fifth Amendment constitutional
requirement” because voluntary departure is discretionary. Supp. Resp. Br. at 9. But the
duty to develop the record arises from the statutory requirements imposed on IJs. See
Arevalo Quintero, 998 F.3d at 622–23 (“This obligation is rooted first and foremost in the
text of the Immigration and Nationality Act, but also finds support in our jurisprudence
concerning Social Security disability hearings and an international refugee law.”). As such,
the duty to develop the record exists even for discretionary decisions such as voluntary
departure. See Yang v. McElroy, 277 F.3d 158, 162 (2d Cir. 2002) (per curiam)
(maintaining than an IJ has a duty to establish the record in a discretionary hearing to grant
asylum based on past persecution).
In this case, the IJ—without the benefit of our recent decision in Quintero—fell
short of his affirmative duty. Had the IJ “scrupulously and contentiously probe[d],” id. at
641 (quoting Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002)), he would have, at a
minimum, inquired about a few different matters. For example, he should have asked what
Vasquez Flores meant when he said he “didn’t have any money here.” J.A. 70, Track 2, at
0:52. Did “here” mean in the courtroom, in the United States, or available to him at all?
How much money did Vasquez Flores have? What bond amount would Vasquez Flores
have been able to pay? If Vasquez Flores had a lower bond, would he have been able to
afford a plane ticket home? The IJ’s failure to ask these additional questions and flesh out
the meaning behind Vasquez Flores’s responses—through a translator, to boot—falls short
of the affirmative duty we recognized in Quintero.
Recall, we must consider not only whether the IJ failed to develop the record, but
also whether that failure prejudiced Vasquez Flores. We believe the IJs failure did
prejudice Vasquez Flores. “By its very nature . . . an immigration judge’s failure to fully
develop the record regarding an issue material to the respondent’s removability or
eligibility for relief is not an error amenable to the ordinary prejudice inquiry.” Quintero,
998 F.3d at 641–42. As we made clear in Quintero, “[s]uch a failure often makes it difficult
for a reviewing court to determine whether any prejudice resulted from that very error—
precisely because the record has not been adequately developed as to the material issue.
In those situations, it would hardly be fair to rule against the noncitizen for failing to make
a sufficient showing of prejudice.” Id. at 642. Thus, we held that “an immigration judge’s
failure to satisfy his or her duty to fully develop the record is presumptively prejudicial,
unless the error is plainly irrelevant to, or otherwise does not hinder in any way, the
reviewing court’s ability to assess whether prejudice occurred.” Id.
The presumption clearly applies here. With an adequately developed record, the
IJ’s bond determination may have been lowered on appeal. See Hernandez v. Sessions,
872 F.3d 976, 990 (9th Cir. 2017) (“Detention of an indigent for ‘inability to post money
bail’ is impermissible if the individual’s ‘appearance . . . could reasonably be assured by
one of the alternate forms of release.’” (quoting Pugh v. Rainwater, 572 F.2d 1053, 1058
(5th Cir. 1978) (en banc))). On appeal, a court—considering all the bond factors relevant
to Vasquez Flores—could have found $5,000 too high an amount to pay and could have
lowered it so that Vasquez Flores could afford both bond and a plane ticket to voluntarily
depart the United States.
Accordingly, we hold that Vasquez Flores was prejudiced by the IJ’s failure to
develop the record. He therefore has satisfied the fundamental unfairness prong and all
other requirements under § 1326(d) for challenging his underlying 2011 deportation.
Our recent decision in Quintero requires more of IJs than a few questions generating
conclusory assumptions. IJs must do more: In the case of this pro se petitioner, the IJ at
Vazquez Flores’s underlying 2011 deportation hearing was required to seek additional
information before determining that Vazquez Flores was not eligible for voluntary
departure. The IJ’s failure necessarily prejudiced Vasquez Flores.
Outcome: Because Vasquez Flores satisfies the three requirements for a collateral attack of his conviction for unlawful reentry, the judgment of the district court is REVERSED.