PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4061

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

BONIFACIO FERNANDEZ SANCHEZ,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, Senior District Judge. (3:18-cr-00022-NKM-JCH-1)

Argued: May 4, 2022 Decided: August 23, 2022

Before GREGORY, Chief Judge, and MOTZ and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Chief Judge Gregory and Judge Motz joined.

ARGUED: Laura Day Taylor, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellant. Erin Margaret Trodden, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Harrisonburg, Virginia, for Appellee. ON BRIEF: Thomas T. Cullen, United States Attorney, Christopher R. Kavanaugh, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellant. Juval O. Scott, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellee. USCA4 Appeal: 20-4061 Doc: 93 Filed: 08/23/2022 Pg: 2 of 24

WYNN, Circuit Judge:

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.

In the years since, Fernandez Sanchez has returned to the United States and been

deported multiple times. Upon discovering him in the country once again in 2018, the

Government opted to arrest and charge him with illegal reentry in violation of 8 U.S.C.

§ 1326(a). Fernandez Sanchez moved to dismiss his indictment, arguing that the 2011

deportation order underlying his § 1326 charge was invalid.

The district court agreed, finding that the immigration judge’s failure to advise

Fernandez Sanchez regarding his eligibility for voluntary departure rendered his 2011

removal fundamentally unfair. However, while this appeal was pending, we effectively

rejected the district court’s reasoning in United States v. Herrera-Pagoada, 14 F.4th 311

(4th Cir. 2021). Fernandez Sanchez 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. We agree, and therefore affirm the dismissal of Fernandez

Sanchez’s indictment.

2 USCA4 Appeal: 20-4061 Doc: 93 Filed: 08/23/2022 Pg: 3 of 24

I.

The following facts are undisputed. Fernandez Sanchez is a native and citizen of

Mexico who first entered the United States as a minor in 2006. While residing here,

Fernandez Sanchez started a family and fathered two children, both of whom are U.S.

citizens.

In 2010, Fernandez Sanchez was arrested for driving under the influence. The police

department referred him to U.S. Immigration and Customs Enforcement (“ICE”). While

he was in ICE custody, the Government

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