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.

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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.

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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 served him with a Notice to Appear before an 

immigration judge, alleging that he had entered the country without being admitted or 

paroled following an inspection by an immigration officer. Instead of admitting he was in 

the United States illegally, Fernandez Sanchez requested a hearing before an immigration 

judge. The hearing took place on June 30, 2011.

At that hearing, the immigration judge failed to abide by several procedural 

requirements. See 8 C.F.R. § 1240.10(a) (2011). For example, the immigration judge did 

not advise Fernandez Sanchez of his “right to representation” and the availability of pro 

bono legal services, or ensure that Fernandez Sanchez received a list of local pro bono legal 

service providers. Id. § 1240.10(a)(1)–(3) (2011). The immigration judge also did not 

explain “the factual allegations and the charges in the notice to appear” to Fernandez 

Sanchez in “non-technical language”; advise him that he would “have a reasonable 

opportunity to examine and object to the evidence against him” and “to present evidence” 

on his own behalf; or place him “under oath.” Id. § 1240.10(a)(4)–(6) (2011). Nor did the 

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immigration judge inform Fernandez Sanchez of his right to appeal.1 See 8 U.S.C.

§ 1229a(c)(5) (2011) (stating the immigration “judge shall inform the [noncitizen] of the 

right to appeal [an adverse] decision” (emphasis added)); 8 C.F.R. § 1240.10(a)(3) (2011)

(requiring the judge to “[a]scertain” that the noncitizen has received “a copy of appeal 

rights”); 8 C.F.R. § 1240.13(d) (2011) (requiring an immigration judge to advise a 

removable noncitizen of their right to appeal to the Board of Immigration Appeals).

Instead, at the hearing—which lasted just over four minutes—the immigration judge 

started by asking Fernandez Sanchez via an interpreter whether he had an attorney. When 

Fernandez Sanchez responded he did not, the judge asked whether he “wish[ed] to find an 

attorney and contest the case, or [whether he] wish[ed] to return home to Mexico.” J.A. 

128 (audio recording).2 Fernandez Sanchez—who conceded that he had entered the country 

illegally in 2006—replied that he would return to Mexico. But in response to further 

questions, Fernandez Sanchez stated that while he was not afraid to return to Mexico, he

wished to remain in the United States because his children (who are U.S. citizens) and their 

mother all live here. He also emphasized that he had been “taking care of [his children] 

since they were born.” J.A. 128. 

1 Fernandez Sanchez’s Notice to Appear did state, in English, that he had a right to 

appeal an adverse decision by the immigration judge. However, Fernandez Sanchez does 

not speak English, and there is no evidence to suggest the Notice was ever translated to 

him in Spanish.

2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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The immigration judge then asked whether Fernandez Sanchez had “the money to 

pay [for his] ticket to go back to Mexico.” J.A. 128. In response, Fernandez Sanchez stated

that he did not want to be deported.

3 He also noted that he did not have the money to pay 

for a ticket at that time because his money went toward supporting his children. Without 

any further investigation, the immigration judge then summarily ordered Fernandez 

Sanchez to be deported to Mexico and closed the hearing.

Following the hearing, the immigration judge memorialized his removal decision in 

a written form order. That order is supposed to be merely “a summary of the oral decision” 

entered at Fernandez Sanchez’s hearing. J.A. 30; see also id. (stating that in the event of 

an appeal “the oral decision will become the official opinion in the case”). However, 

although neither the right to appeal nor any waiver of that right was discussed at the 

hearing, the immigration judge indicated on the written form order that Fernandez Sanchez 

had “[w]aived” his right to appeal. J.A. 30.

Normally, a noncitizen has thirty days to file an appeal of a removal decision. 

8 C.F.R. §§ 1003.38(b), 1240.15 (2011). During this time period, the noncitizen generally 

may not be removed unless they waive their right to appeal. Id. § 1003.6(a) (2011). Since 

Fernandez Sanchez’s order indicated he had waived his appellate rights, however, he was 

removed twenty-two days after his hearing on July 22, 2011.

Fernandez Sanchez was found again in the United States in January and February 

2013. On both occasions, immigration authorities reinstated his 2011 deportation order, 

3 The interpreter did not translate this statement.

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Fernandez Sanchez declined to contest their determinations, and he was subsequently 

removed.

Five years later, Fernandez Sanchez was arrested once more for driving under the 

influence. After he was transferred to ICE custody, a grand jury indicted him on one count 

of illegal reentry in violation of 8 U.S.C. § 1326(a). That section provides that “any 

[noncitizen] who . . . has been denied admission, excluded, deported, or removed or has 

departed the United States while an order of exclusion, deportation, or removal is 

outstanding, and thereafter . . . enters, attempts to enter, or is at any time found in, the 

United States, . . . shall be fined . . . , or imprisoned not more than 2 years, or both,” with 

certain exceptions not applicable here. 8 U.S.C. § 1326(a) (2018).

Fernandez Sanchez moved to dismiss the indictment by collaterally attacking the 

underlying 2011 removal order pursuant to 8 U.S.C. § 1326(d).

4 Under that provision, 

Fernandez Sanchez was required to show that (1) he exhausted his administrative remedies, 

(2) he was denied the opportunity for judicial review, and (3) his removal was 

fundamentally unfair, meaning the immigration judge violated his due-process rights in a 

way that actually prejudiced him. United States v. El Shami, 434 F.3d 659, 663–65 (4th 

Cir. 2005) (citing 8 U.S.C. § 1326(d)).

4 Fernandez Sanchez also initially argued that since his Notice to Appear “lacked 

not only the date and time of his removal hearing, but also the address of the immigration 

court where it would be filed,” the immigration court lacked jurisdiction over him. J.A. 10. 

However, we squarely rejected this argument in United States v. Cortez, 930 F.3d 350, 362 

(4th Cir. 2019), and Fernandez Sanchez “recognized before the district court that Cortez

was dispositive” on that point. Response Br. at 4 n.2.

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Fernandez Sanchez’s motion claimed that the immigration judge’s failure to inform 

him of his right to appeal satisfied the first two prongs. As for the third prong, his argument 

largely focused on a separate removal-hearing regulation that requires an immigration 

judge to “inform the [noncitizen] of his or her apparent eligibility to apply for” relief from 

removal and “afford the [noncitizen] an opportunity to make application [for such relief] 

during the hearing.” 8 C.F.R. § 1240.11(a)(2) (2011). According to Fernandez Sanchez, 

the immigration judge shirked this duty when he failed to adequately inform Fernandez 

Sanchez of his potential eligibility for “[s]o-called ‘pre-conclusion voluntary departure.’”5

Narine v. Holder, 559 F.3d 246, 248 n.1 (4th Cir. 2009). 

The district court agreed. The court accepted Fernandez Sanchez’s logic that the 

immigration judge’s failure to inform him of the right to appeal satisfied the first two 

prongs of the § 1326(d) analysis. As for the third prong, the court concluded that the 

immigration judge’s “failure to apprise [Fernandez Sanchez] of his potential eligibility for 

pre-conclusion voluntary departure violated his due process rights.” United States v. 

Fernandez Sanchez, No. 3:18-CR-00022, 2019 WL 7041513, at *5 (W.D. Va. Dec. 20, 

2019). And the court further concluded that this failure prejudiced Fernandez Sanchez

5 Pre-conclusion voluntary departure “allows a[] [noncitizen] charged with 

removability to depart the country voluntarily prior to the completion of removability 

proceedings,” Narine v. Holder, 559 F.3d 246, 248 n.1 (4th Cir. 2009), so long as they 

satisfy certain regulatory factors and merit a favorable exercise of discretion, 8 C.F.R. 

§ 1240.26(b)(1)(i) (2011) (listing factors); In re Arguelles-Campos, 22 I. & N. Dec. 811, 

817 (B.I.A. 1999) (en banc) (holding that “discretion remains a required element of 

voluntary departure”). By contrast, post-conclusion voluntary departure provides similar 

relief “at the conclusion of the removal proceedings,” with stricter eligibility requirements. 

8 C.F.R. § 1240.26(c) (2011) (listing requirements). 

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because there was “a reasonable probability that he would have received voluntary

departure had he been advised of it.” Id. Having found that Fernandez Sanchez could 

satisfy all three prongs of § 1326(d) and therefore could successfully collaterally attack the

underlying 2011 deportation order, the court dismissed the indictment. Id. at *9. The 

Government timely appealed.

While this appeal was pending, we issued our opinion in United States v. HerreraPagoada. In that case, defendant Lexy Leonel Herrera-Pagoada sought to prove he was 

actually innocent of an 8 U.S.C. § 1326(a) violation “by collaterally attacking the removal 

order underlying his illegal reentry conviction.” Herrera-Pagoada, 14 F.4th at 319. Like 

Fernandez Sanchez, Herrera-Pagoada argued that his due-process rights were violated by 

the immigration judge’s failure to advise him that he was eligible for pre-conclusion 

voluntary departure. Id. at 320; see id. at 315 n.3. We rejected that argument, holding that 

a noncitizen “has no constitutional right to be advised of his eligibility for discretionary 

relief” such as pre-conclusion voluntary departure. Id. at 322.

After a round of supplemental briefing, Fernandez Sanchez now concedes that 

“Herrera-Pagoada forecloses [his] argument that he was denied due process by the 

[immigration judge’s] failure to advise him of his eligibility for voluntary departure.” Supp. 

Response Br. at 2. However, he claims he “suffered another due process violation, namely 

the denial of his right to appeal the [immigration judge’s] removal order” via an 

uninformed—and apparently fabricated—waiver. Id. (emphasis added). Because this 

“violation has also prejudiced him,” he urges us to affirm the district court on this 

alternative ground. Id.; see United States ex rel. Drakeford v. Tuomey, 792 F.3d 364, 375 

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(4th Cir. 2015) (“[W]e may affirm a district court’s ruling on any ground apparent in the 

record.”).

II.

A noncitizen charged with illegal reentry pursuant to 8 U.S.C. § 1326(a) must, as a 

matter of due process, be able to “collaterally attack the propriety of the[ir] 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), superseded by statute as 

stated in United States v. Palomar-Santiago, 141 S. Ct. 1615, 1619 (2021) (citing 8 U.S.C. 

§ 1326(d))). To successfully attack the underlying deportation order, the defendant must 

demonstrate that (1) he “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 [him] of the opportunity for judicial review; and (3) the 

entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d). “[I]f the defendant 

satisfies all three requirements, the illegal reentry charge must be dismissed as a matter of 

law.” El Shami, 434 F.3d at 663.

The Government concedes that Fernandez Sanchez has satisfied the first two 

requirements. The only question presented on appeal, therefore, is whether he has also 

satisfied the third—showing that his deportation order was “fundamentally unfair.” To 

establish fundamental unfairness, “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.” United States v. Wilson, 316 F.3d 506, 510 (4th Cir. 

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2003), abrogated on other grounds by Lopez v. Gonzales, 549 U.S. 47 (2006). We consider 

each prong in turn.

A.

Typically, the first question before us would be whether Fernandez Sanchez’s 

uninformed and illusory waiver of his right to appeal violated his due-process rights. 

Fernandez Sanchez suggests that such an inquiry is unnecessary, however, because the 

Government failed to timely or adequately contest this issue, thereby waiving it. We agree.

In general, “[a] party waives an argument by failing to present it in its opening 

brief.” Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017); see also Fed. 

R. App. P. 28(a)(8)(A) (requiring the appellant’s opening brief to contain their “contentions 

and the reasons for them, with citations to the authorities and parts of the record on which 

the appellant relies”). Yet as the Government conceded at oral argument, it did not address 

Fernandez Sanchez’s right-to-appeal due-process argument until its supplemental reply

brief.

Though that alone would normally doom the Government’s argument, we need not 

rely on that basis because even looking past the Government’s delay, we still conclude the 

Government waived its argument. That’s because a party also waives an issue by “failing 

to ‘“develop [its] argument”—even if [its] brief takes a passing shot at the issue.’” 

Grayson O, 856 F.3d at 316 (quoting Brown v. Nucor Corp., 785 F.3d 895, 923 (4th Cir. 

2015) (Agee, J., dissenting)). Here a “passing shot” is all that the Government took by 

effectively making a due-process “argument” that boils down to a single sentence in its 

brief. See Supp. Reply Br. at 3 (“[I]f the [immigration judge] has no constitutional duty to 

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inform the [noncitizen] about the possibility of applying for voluntary departure under 

Herrera-Pagoada, there cannot be an error of constitutional dimension in failing to inform 

the [noncitizen] that he can appeal the alleged failure to inform.”). Given the complexity 

of the issue, we cannot say this single sentence suffices to preserve the Government’s 

argument.6 And we decline the Government’s unspoken invitation to wade through the 

case law and make its argument for it.7

B.

Because the Government waived any argument on the due-process issue, we assume 

that the immigration judge’s denial of his appellate rights constituted a due-process

6 Further, even this one sentence is not responsive to Fernandez Sanchez’s 

argument. He does not just contend that the immigration judge failed to inform him of his 

right to appeal. Instead, he argues more broadly that the immigration judge effectively 

denied his right to appeal by “[o]btaining an invalid waiver” of said appellate rights. Supp. 

Response Br. at 3–4 (quoting United States v. Gomez, 757 F.3d 885, 893 (9th Cir. 2014)).

7 As Fernandez Sanchez notes in his supplemental response brief, the Ninth Circuit 

has repeatedly found that an “invalid waiver of the right to appeal a deportation order 

violates due process.” Gomez, 757 F.3d at 893; see also United States v. Pallares-Galan, 

359 F.3d 1088, 1098 (9th Cir. 2004) (finding a due-process violation where an immigration 

judge informed a noncitizen of his right to appeal but failed to give him adequate time to 

consider his options or follow up once the noncitizen conveyed “significant confusion 

about what the appeals process would have entailed”); United States v. Lopez-Vasquez, 

1 F.3d 751, 753–54 (9th Cir. 1993) (per curiam) (holding that a noncitizen’s silent waiver 

of his appellate rights violated due process because it was neither “considered” nor 

“intelligent”). We have also recognized the “due process implications” of a noncitizen’s 

“waiver of his appellate rights” in a similar setting. Narine, 559 F.3d at 249–50 (first 

quoting In re Ocampo-Ugalde, 22 I. & N. Dec. 1301, 1304 (B.I.A. 2000)). The 

Government’s one-sentence due-process argument ignores these decisions, however, 

leaving us guessing whether any contrary authority exists. And while we could certainly 

scour Westlaw for contrary cases or attempt to distinguish those cases cited by Fernandez 

Sanchez, that is not our role.

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violation and proceed to the second step of the § 1326(d) “fundamental unfairness” inquiry.

See United States v. Vasquez Flores, No. 19-4190, 2021 WL 3615366, at *3 (4th Cir. Aug. 

16, 2021) (per curiam) (evaluating only the second step of this inquiry where that was the 

only issue disputed by the parties). Accordingly, we turn to the question of whether 

Fernandez Sanchez has shown that the immigration judge’s denial of his appellate rights

prejudiced him. We conclude that he has.

To satisfy the second step of the fundamental-unfairness inquiry, “a defendant must 

show that he suffered actual prejudice as a result of the due process violations in the 

removal proceedings.” United States v. Lopez-Collazo, 824 F.3d 453, 462 (4th Cir. 2016)

(emphasis omitted). “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.” Id. However, that link need not be ironclad—a defendant need not show 

with certainty that the violation altered the outcome. So long as the defendant shows that 

“but for the [due-process] errors complained of, there was a reasonable probability that he 

would not have been deported,” the prejudice prong is satisfied. El Shami, 434 F.3d at 665 

(emphasis added). A “reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” United States v. Terrazas-Silas, 811 F. App’x 845, 847 (4th 

Cir. 2020) (per curiam) (quoting United States v. Fulks, 683 F.3d 512, 517 (4th Cir. 2012), 

in the context of a § 1326(d) prejudice evaluation).

Though the parties agree on this standard, they disagree on the applicable standard 

of review. The Government urges us to review the district court’s prejudice finding—or at 

least those portions still relevant to the right-to-appeal due-process violation—de novo, 

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consistent with our 2003 decision in Wilson and our 2005 decision in El Shami. See Wilson, 

316 F.3d at 509 (“This court reviews Wilson’s challenge to his conviction [via 8 U.S.C. 

§ 1326(d)] de novo.”); El Shami, 434 F.3d at 663 (“This Court reviews de novo the denial 

of a motion to dismiss a charge under 8 U.S.C. § 1326(d).”).

Fernandez Sanchez, by contrast, argues that we should apply the more nuanced 

standard of review adopted in our 2016 decision in Lopez-Collazo, which relied on earlier

motion-to-dismiss-an-indictment case law. See Lopez-Collazo, 824 F.3d at 460 (“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.” 

(citing United States v. Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005))). And since some 

portions of the district court’s prejudice analysis rest on discrete factual findings, the 

argument goes, we should review those underlying determinations for clear error only. 

Our sister circuits have largely coalesced around a de novo standard when it comes 

to reviewing a district court’s overall prejudice finding for a § 1326(d) collateral attack.8

8 See United States v. Luna, 436 F.3d 312, 316 (1st Cir. 2006) (holding “that a 

district court’s determination of whether a defendant has established prejudice pursuant to 

8 U.S.C. § 1326(d)(3) is subject to de novo review”); United States v. Scott, 394 F.3d 111, 

116 (2d Cir. 2005) (“Because [a § 1326(d) inquiry] entails mixed questions of law and fact, 

we review de novo the district court’s denial of [the defendant’s] motion to dismiss the 

indictment.”); United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004) 

(“We review de novo [‘]the denial of a motion to dismiss an 8 U.S.C. § 1326 indictment 

when the motion to dismiss is based on alleged due process defects in an underlying 

deportation proceeding.’” (quoting United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th 

Cir. 2001))); United States v. Aguirre-Tello, 353 F.3d 1199, 1204 (10th Cir. 2004) (en 

banc) (“When a previous deportation proceeding is attacked on constitutional grounds, we 

are presented with a mixed question of law and fact, which we review de novo.”).

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However, some courts apply clear-error review to the factual findings underlying the 

overall prejudice determination.9

We need not decide today which of these standards of review applies, because the 

result is the same under either approach. Whether we review the relevant portions of the

district court’s prejudice analysis for clear error or consider them afresh, we conclude that 

Fernandez Sanchez has established a reasonable probability that he would not have been 

deported but for the immigration judge’s denial of his appellate rights.

Both parties agree that for Fernandez Sanchez to make this showing, he must at least 

establish that (1) he would have successfully appealed if given the opportunity and (2) he

would have sought and been granted voluntary departure on remand. The Government

further argues that Fernandez Sanchez must also show (3) that he would actually have 

voluntarily departed. We proceed to analyze each step in turn.

10

9 See United States v. Ramirez, 962 F.3d 1056, 1059 (8th Cir. 2020) (“When 

reviewing a motion to dismiss an indictment under § 1326(d), we apply a clear error 

standard to the district court’s findings of fact, but we review de novo whether the facts 

establish a due process defect.”); United States v. Silvestre-Gregorio, 983 F.3d 848, 851 

(6th Cir. 2020) (applying de novo review to the “denial of a motion to dismiss an indictment 

and a collateral attack upon a prior removal order underlying a conviction for unlawful 

reentry,” but holding that the district court’s underlying “factual findings” are still reviewed 

for “clear error” (first quoting United States v. Zuñiga-Guerrero, 460 F.3d 733, 735 (6th 

Cir. 2006))).

10 In conducting this analysis, we have not attempted to determine (nor do we think 

it would be appropriate to attempt to determine) a particular probability by which each step 

in this chain of causation must be shown. Instead, we have found that each has been 

established with sufficient surety for us to ultimately conclude that there is a reasonable 

probability Fernandez Sanchez would not have been deported but for the immigration 

judge’s denial of his appellate rights. See El Shami, 434 F.3d at 665. 

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1.

To start, we examine whether Fernandez Sanchez would have successfully 

appealed, given the opportunity. We conclude he would have.

As a threshold matter, Fernandez Sanchez has sufficiently established that he would 

have appealed if given the chance. At the hearing, Fernandez Sanchez stated that he did 

not want to be deported and explained that he wished to remain in the United States with 

his minor children and their mother. An appeal offered the only realistic avenue of 

accomplishing both things. We also note that Fernandez Sanchez both exercised his right 

to an immigration hearing and requested reconsideration of the immigration judge’s pretrial 

custody decision, indicating a willingness to utilize the legal process made available to 

him. So, we think it highly probable that Fernandez Sanchez would have appealed the 

immigration judge’s removal order if given the opportunity. 

We also believe that Fernandez Sanchez would have been successful on appeal. The 

Board of Immigration Appeals has held that an immigration judge’s failure to consider a

potentially eligible noncitizen for pre-conclusion voluntary departure is reversible error. 

In re Cordova, 22 I. & N. Dec. 966, 972 (B.I.A. 1999) (en banc) (faulting the immigration 

judge for failing to inform an apparently eligible—and counseled—noncitizen of the 

conditions under which the noncitizen could apply for voluntary departure and, as a result, 

denying the noncitizen “a meaningful opportunity to apply for this relief”). The 

Government concedes that the immigration judge made the same error here. See Opening 

Br. at 20 n.4 (admitting that the immigration judge “was not in compliance with binding 

caselaw,” specifically Cordova); Reply Br. at 15 (same). Accordingly, we conclude that, 

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had the immigration judge not denied Fernandez Sanchez’s right to appeal, he would have 

successfully appealed his removal order and the Board of Immigration Appeals would have 

remanded the case for further proceedings. 

2.

Next, we consider whether Fernandez Sanchez would have been granted preconclusion voluntary departure on remand. Like the district court, we have little trouble 

answering in the affirmative.

To qualify for pre-conclusion voluntary departure, a noncitizen must (1) make a 

request for such voluntary departure “prior to or at the master calendar hearing at which 

the case is initially calendared for a merits hearing”; (2) make “no additional requests for 

relief”; (3) concede removability; (4) waive appeal of “all issues”; and (5) not have been 

convicted of an aggravated felony. 8 C.F.R. § 1240.26(b)(1)(i) (2011). If a noncitizen 

satisfies all five regulatory factors, they must also show that they merit a favorable exercise 

of discretion. In re Arguelles-Campos, 22 I. & N. Dec. 811, 817 (B.I.A. 1999) (en banc) 

(holding that “discretion remains a required element of voluntary departure”).

The Government does not dispute that Fernandez Sanchez meets the second, third, 

and fifth regulatory requirements. Nor does it contest the district court’s finding that 

Fernandez Sanchez would have merited a favorable exercise of discretion. The 

Government does argue, however, that Fernandez Sanchez would not have satisfied the 

first and fourth regulatory requirements on remand. We consider both of these elements in 

turn.

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i.

The Government first asserts that Fernandez Sanchez would have been unlikely to 

request voluntary departure on remand.11 As support, it notes that Fernandez Sanchez “did 

not request voluntary departure” at his original hearing, which suggests he would be 

unlikely to request it on remand.12 Opening Br. at 24. But as both parties agree, Fernandez 

Sanchez—who was acting pro se—was not advised that voluntary departure was an option 

at his original hearing. And it is difficult to imagine why we would consider a noncitizen’s 

11 The Government does not suggest that Fernandez Sanchez would be unable to 

request voluntary departure on remand because such a request would not be “prior to or at 

the master calendar hearing.” To be sure, a master calendar hearing “is typically a[] 

[noncitizen]’s first appearance before an [immigration judge] in removal proceedings.” 

Mejia v. Sessions, 866 F.3d 573, 577 n.2 (4th Cir. 2017) (emphasis added). Though a 

hearing following remand from the Board of Immigration Appeals would, in a literal sense, 

be Fernandez Sanchez’s second hearing, we do not believe that would forestall him from 

timely requesting pre-conclusion voluntary departure on remand. After all, it was the 

immigration judge’s failure to inform him of this relief at his first hearing that “denied 

[him] a meaningful opportunity to apply for this relief” at the earliest opportunity. Cordova, 

22 I. & N. Dec. at 972. But since the Government does not contest the point, we consider 

it waived.

12 The Government also half-heartedly argues that Fernandez Sanchez has never 

stated—in either district court or appellate filings—that “he would have actually applied 

for voluntary departure” on remand. Reply Br. at 21. In effect, the Government seems to 

be faulting Fernandez Sanchez for failing to make self-serving post-hoc arguments about 

what he would have done on remand. We are doubtful that he failed to do so. See Response 

Br. at 37 n.8 (noting that Fernandez Sanchez has argued from the very start that “he would 

have been granted voluntary departure,” which “necessarily includes the component that, 

once properly advised, he would have requested it”). But even if he had, we fail to see how 

the lack of such post-hoc arguments is “evidence” that Fernandez Sanchez would not have 

requested and received voluntary departure on remand. Our prejudice inquiry concerns the 

facts at the time of the 2011 removal hearing—not self-serving statements made a decade 

later. To the extent that the Government is claiming that Fernandez Sanchez has waived

the argument that he would have requested voluntary departure, we again note that we may 

affirm “on any ground apparent in the record.” Drakeford, 792 F.3d at 375.

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failure to request relief in these circumstances as evidence that, properly advised, the 

noncitizen would later decide not to request the same relief.

At any rate, as the district court observed, other evidence in the record strongly 

suggests that Fernandez Sanchez would have requested pre-conclusion voluntary departure 

on remand. Fernandez Sanchez, 2019 WL 7041513, at *9 (observing that “taking 

advantage of voluntary departure would have had clear pragmatic [and beneficial] 

consequences for Fernandez Sanchez”). As noted above, it is undisputed that Fernandez 

Sanchez’s minor children lived in the United States, that he supported them, that the 

children’s mother also lived in the United States, and that Fernandez Sanchez wished to 

continue living with them. If he had been properly informed of the benefits of voluntary 

removal, he would have known that his best bet for permanently reuniting with his family

would be voluntary departure.13 See Dada v. Mukasey, 554 U.S. 1, 11 (2008) (observing 

13 Though the Government does not raise the issue, it is worth noting that voluntarily 

departing would not have allowed Fernandez Sanchez to lawfully return to the United 

States any sooner. That’s because whether or not he voluntarily departed, Fernandez 

Sanchez would have been barred from seeking lawful readmission to the United States for 

ten years. See 8 U.S.C. § 1182(a)(9)(A)(ii) (2011) (barring noncitizens involuntarily 

deported following a removal hearing from seeking readmission for ten years); id.

§ 1182(a)(9)(B)(i) (barring noncitizens who, like Fernandez Sanchez, have “been 

unlawfully present in the United States for one year or more,” from seeking readmission 

for ten years, even if they voluntarily departed). However, if Fernandez Sanchez had

voluntarily departed, he would not have been subject to a § 1326 criminal charge based on 

his 2011 removal order—a charge that could separate him from his family for years of 

prison time, followed by another deportation. A future application for lawful admission 

may also have been looked upon more favorably had he departed voluntarily rather than 

being deported. Additionally, voluntary departure would have allowed Fernandez Sanchez 

to avoid “extended detention pending completion of travel arrangements” and allowed him 

to “choose when to depart (subject to certain constraints).” Dada v. Mukasey, 554 U.S. 1, 

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that “by departing voluntarily the [noncitizen] facilitates the possibility of readmission”). 

Therefore, we are comfortable concluding that Fernandez Sanchez would have requested 

voluntary departure on remand.

ii.

The Government also asserts that Fernandez Sanchez would not have been able to 

meet the voluntary-departure requirement that he waive appeal of all issues if he had 

already, in fact, appealed. That argument is fundamentally flawed.

To start, the Government’s argument overlooks on-point administrative precedent. 

In In re Cordova, the Board of Immigration Appeals interpreted the very same waiver 

requirement and held that a noncitizen’s “attempt to correct” an immigration judge’s failure 

to inform him of his eligibility for voluntary departure “through an appeal should not cause 

him to lose the right to apply for voluntary departure [on remand] simply because his 

request was improperly denied.” Cordova, 22 I. & N. Dec. at 970 (emphasis added). It is 

easy to see why—if the Government’s reading held sway, then noncitizens would be stuck 

in a classic Catch-22: live with the immigration judge’s error and therefore be prevented 

from seeking voluntary departure, or attempt to appeal said error and foreclose your ability 

to seek voluntary departure anyway.

The voluntary-departure regulation’s plain text does not require such a Kafkaesque 

result. In fact, it commands the opposite. The relevant provision states (now, as it did at the 

11 (2008). In other words, he could have actually said a proper goodbye to his family before 

departing.

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time of the hearing in 2011) that a noncitizen “may be granted voluntary departure . . . only 

if” he or she “[w]aives appeal of all issues.” 8 C.F.R. § 1240.26(b)(1)(i)(D) (emphasis 

added). Critically, “waives” is written in the present tense. And it is well settled that the 

present tense is an indicator that the text captures conduct occurring “in the present or the 

future, not in the past.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 

U.S. 49, 59 (1987) (emphasis added). Thus, to be granted voluntary departure, a noncitizen 

must agree to waive future appeals, not demonstrate that they have not appealed in the 

past.

14

With that cleared up, we easily conclude that Fernandez Sanchez would have 

waived his right to future appeals in order to pursue voluntary departure. The Government 

does not challenge any other aspects of the voluntary-departure inquiry, including the 

district court’s conclusion that there is a reasonable probability such discretionary relief 

would have been granted. Fernandez Sanchez, 2019 WL 7041513, at *9. Because we reject 

the Government’s contentions that Fernandez Sanchez would not have been eligible for 

voluntary departure, and because the Government has waived any other arguments against 

that eligibility by failing to raise them before us, we conclude that Fernandez Sanchez 

would have been granted voluntary departure on remand. 

14 This construction is further supported by other regulations which allow a 

noncitizen to appeal an immigration judge’s decision “whether to grant voluntary 

departure.” 8 C.F.R. § 1240.26(g) (2011); cf. id. § 1240.15 (“[A]n appeal shall lie from a 

decision of an immigration judge to the Board of Immigration Appeals.”). There would be 

no reason to allow such an appeal if doing so automatically foreclosed the very relief sought 

by the appeal.

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3.

The Government counters that even if the immigration judge granted voluntary 

departure and declined to deport Fernandez Sanchez, Fernandez Sanchez still must show 

that he would have actually departed in a timely fashion. We disagree.

The Government observes that under our precedent, a noncitizen must “show a 

reasonable probability he would have not actually been deported.” Supp. Reply Br. at 3 

(citing El Shami, 434 F.3d at 665). The Government concedes that if Fernandez Sanchez 

were granted voluntary departure, he would have avoided immediate deportation. 

However, the Government notes that “an [immigration judge] who grants voluntary 

departure must ‘also enter an alternate order [of] removal,’ which will automatically 

become a valid deportation order if the [noncitizen] does not comply timely with voluntary 

departure.” Reply Br. at 21 (quoting 8 C.F.R. § 1240.26(d)). In other words, “if [Fernandez] 

Sanchez could not actually leave the country in a timely manner, he would have been 

deported.” Id. According to the Government, this means Fernandez Sanchez must show 

not only that he would have been granted voluntary departure, but also that he “actually 

would have bought a ticket and voluntarily left the county.”15 Id. And the Government 

15 The Government cites our opinion in El Shami in support of this point. El Shami

held that a noncitizen must show “there was a reasonable probability that he would not 

have been deported.” 434 F.3d at 665. But it does not stand for the proposition the 

Government puts forward here: that, to show prejudice, an immigrant in Fernandez 

Sanchez’s shoes must show that, but for the due-process violation, they would have 

avoided even eventual deportation via automatic operation of an alternate order of removal. 

That question was not before the Court in El Shami.

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contends that Fernandez Sanchez could not have done so because he conceded that he did 

not have the funds to depart at the time of his hearing.

We disagree. Fernandez Sanchez’s statement that he did not have funds “now”—at 

that moment, in the hearing—is not dispositive, because having the “means to depart the 

United States” is an element only of post-conclusion voluntary departure, not the preconclusion voluntary departure Fernandez Sanchez would have been seeking on remand.

16

Arguelles-Campos, 22 I. & N. Dec. at 817 (noting that a noncitizen “need not show that 

he . . . has the financial means to depart the United States” to receive pre-conclusion 

voluntary departure); see 8 U.S.C. § 1229c(a)(1), (b)(1)(D) (2011); 8 C.F.R. § 1240.26(b), 

(c)(1)(iv) (2011). All that Fernandez Sanchez needed to show is that, “but for” the 

immigration judge’s denial of his appellate rights, “there was a reasonable probability that 

he would not have been deported” on July 22, 2011, pursuant to the order entered on the 

day of his hearing. El Shami, 434 F.3d at 665. He has made that showing.

True, it is theoretically possible that Fernandez Sanchez would have been 

subsequently deported via the alternate order of removal. However, that subsequent 

deportation would not have been caused by the immigration judge’s failings, but rather by 

Fernandez Sanchez’s independent failure to timely depart in accordance with the 

immigration judge’s grant of discretionary relief. In other words, the chain of causation 

16 Upon being granted pre-conclusion voluntary departure, Fernandez Sanchez 

would have had time—up to 120 days, at the immigration judge’s discretion, 8 U.S.C. 

§ 1229c(a)(2)(A) (2011)—to gather the funds necessary to reach Mexico, a trip he could 

have undertaken overland from his home in Virginia.

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connecting the immigration judge’s due-process violation to Fernandez Sanchez’s

deportation would be broken. See Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012)

(holding that the “subsequent acts of independent decision-makers . . . may constitute 

intervening superseding causes that break the causal chain between” one event and 

another). And since the prejudice prong is concerned with the impact of the immigration 

judge’s due-process failings, not the respondent’s, it would be odd to require the 

respondent to also show they would not have prejudiced themselves.

17 Further, at a more 

fundamental level, our 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).

17 Such a showing would also be impossible to make in the mine run of cases. 

Because the means to depart is not an element of pre-conclusion voluntary departure, the 

immigration judge would normally have no reason to develop the record on this issue. Cf.

Arevalo Quintero v. Garland, 998 F.3d 612, 622 (4th Cir. 2021) (broadly holding that an 

immigration judge has a “duty to develop the record in immigration court proceedings,” 

based primarily on the text of the Immigration and Nationality Act). The only reason this 

issue was developed at all in Fernandez Sanchez’s hearing appears to be the immigration 

judge’s mistaken belief that ability to pay for departure is an element of pre-conclusion 

voluntary departure. Barring a similar error, there will be no way for a defendant to show 

on collateral attack that they could have financed their voluntary departure, based upon the 

record as developed before the immigration judge. Thus, the Government’s view would 

create an incongruous situation in which neither the immigration judge nor the noncitizen 

would have any reason to develop the record as to whether the noncitizen would have the 

means to depart if granted voluntary departure—and yet, for that very reason, the 

noncitizen would be unable to collaterally challenge any error in the immigration hearing 

related to voluntary departure. For the reasons already given, § 1326(d) commands no such 

bizarre result. 

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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.

III.

For the foregoing reasons, we affirm the district court’s dismissal of Fernandez 

Sanchez’s indictment.

AFFIRMED

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