Full opinion text
MEMORANDUM OPINION ELLEN LIPTON HOLLANDER, District Judge. In October 2014, a federal grand jury returned a one-count indictment against Agustín Lopez-Collazo, charging him with illegal reentry into the United States, without consent, after having been previously removed from the country following conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a) & (b)(2). ECF 1. Pursuant to 8 U.S.C. § 1326(d), Lopez-Collazo filed a Motion to Dismiss the Indictment, ECF 14 (“Motion” or “Motion to Dismiss”), with exhibits. In the Motion, which is a collateral attack on the prior order of removal, defendant maintains that he can establish the three elements required by 8 U.S.C. § 1326(d). The Government opposes the Motion, ECF 24 (“Response”) and has submitted exhibits. Defendant has replied. ECF 25 (“Reply”). And, with the consent of the Court, the Government supplemented its opposition to the Motion, ECF 36 (“Supplemental Response”), to which defendant responded. ECF 37 (“Supplemental Reply”). In addition, defendant has filed a Motion to Suppress Tangible and Derivative Evidence and Statements, ECF 13 (“Motion to Suppress”). The Government responded in ECF 24, and defendant replied. ECF 25. The Court held an evidentiary motions hearing on April 23, 2015, see ECF 39, and heard oral argument on April 30, 2015. See ECF 43. For the reasons that follow, I will grant the Motion to Dismiss. And, because I will grant defendant’s Motion to Dismiss, I need not decide defendant’s Motion to Suppress. I. Factual Background A. Defendant’s Entry to the United States & Maryland State Convictions Lopez-Collazo was born in 1982 (ECF 24-5 at 2, 20) and is a citizen of Mexico. Defendant’s native language is Spanish, ECF 25-5 at 3, and he has an eighth grade education. See ECF 24-4 at 6-7. Lopez-Collazo first entered the United States approximately sixteen years ago, at the age of sixteen. See Supplemental Reply, ECF 37 at 10. It appears that he entered without inspection, ie., without permission. On January 7, 2005, Lopez-Collazo pled guilty, in the Circuit Court for Talbot County, Maryland, Case No. K-04-8063, to Theft Under $500, in violation of Md.Code (2005 Supp.), § 7-104 of the Criminal Law Article (“C.L.”). See ECF 24-5 at 14 (Maryland Sentencing Guidelines Worksheet); ECF 24-5 at 13 (Certificate of Presiding Judge). C.L. § 7-104 is titled “General theft provisions.” It criminalizes a variety of means in which to commit the offense of theft, including “unauthorized control over property”; “unauthorized control over property by deception”; “possessing stolen personal property”; “control over property, lost, mislaid or delivered by mistake”; and “services available only for compensation.” The exhibits show that, on January 7, 2005, with the aid of an interpreter, defendant completed a written form titled “Examination of Defendant Prior to Acceptance of Guilty Pleas” (“Examination”), ECF 24-5. The Examination constituted the plea colloquy. Question 6 asked: “Can you understand, read and write the English language?” ECF 24-5 at 3. Lopez-Collazo answered: “No — Spanish is my native language. I have an interpreter present.” Id. Question 14 specified the charge to which defendant pleaded guilty. It merely lists the case number, the count, the offense, ie., “Theft Less Than $500.00,” and the maximum penalty. See also Question 28, ECF 24-5 at 8. Question 37 asked: “Do you wish to plead guilty because you are in fact guilty, because you believe it is in your best interest to plead guilty or for both of these reasons?” ECF. 24-5 at 11. Defendant answered: “It is in my best interest.” Id. Defendant’s attorney certified that the guilty plea was knowing and voluntary. ECF 24-5 at 12. In addition, the presiding judge, William Horne, certified that he “reviewed in detail all contents of this form orally with the Defendant.” ECF 24-5 at 13. Further, he determined that defendant’s plea to the charge in paragraph 14 of the Examination was knowing and voluntary. The judge also found a factual basis for the plea, based on “hearing a statement of facts_” ECF 24-5 at 13 ¶4. However, nothing in the plea documents submitted by the Government shows the factual basis for defendant’s plea. See ECF 24-5 at 2-14. According to the applicable Maryland Sentencing Guidelines Worksheet, Lopez-Collazo’s plea was tendered in relation to an offense committed on October 16, 2003. See ECF 24-5 at 14. The “Statement of Probable Cause,” which does not appear as part of the plea colloquy, alleges that defendant cashed a forged check on October 16, 2003. See ECF 36-1 at 2 (Statement of Probable Cause); see also Response, ECF 24 at 1. At the time of his guilty plea, Lopez-Collazo had no prior record. Id. at 14. He was sentenced to eighteen months imprisonment, with the suspension of all but time served from July 8, 2004, and three years of probation. Id. at 14, 18 (Probation/Supervision Order). In addition, Lopez-Col-lazo was ordered to pay restitution in the amount of $437.00. Id. at 15 (Restitution Order). Sometime in 2006, Lopez-Collazo “and his U.S. citizen girlfriend had their first child, who is also a U.S. citizen.” Supplemental Reply, ECF 37 at 10. In addition, “[s]he had a toddler from a prior relationship whom [defendant] was raising as his own.” Id. ■ On' December 1, 2006, Lopez-Collazo and his brother were involved in an altercation in Dorchester County, Maryland with officers Of the Cambridge Police Department. ECF 24-4 at 11 (“Plea Collo,quy & Sentencing”).- Thereafter, on May 10, 2007, defendant appeared with counsel in the Circuit Court for Dorchester County, Maryland, in Case No. 09-K-07-012557, and pled guilty to Assault in the Second Degree under Md.Code (2007 Supp.), C.L. § 3-203. See ECF 24-3 at 1, 4 (Case History); Plea Colloquy & Sentencing, ECF 24-4. C.L. § 3-2Q3(a) states: “A person may not commit an assault.” Section 3 — 203(c)(3) provides, that assault in the second degree of a law enforcement officer is a felony under State law, subject to a higher, fine than assault of persons who are not law enforcement officers. Lopez-Collazo also pled guilty to driving without a license. ECF 24-3 at 5. The plea colloquy was conducted- in English, with the aid of an interpreter. ECF 24-4 at 6, 7. It appears that. Lopez-Collazo answered requests for his name, home address, and age in English, on his own behalf. Id. at 6. However, he answered the remainder of the questions through an interpreter. ECF 24-4. During the plea colloquy, the prosecutor set forth the facts the State would have proved if the case went to trial, as follows, ECF 24-4 at 10-11: [0]n December 1st, 2006 Officers of the Cambridge Police Department responded to 501 Maryland Avenue for a fight. The Police would later learn that that was related to an attempted theft from the business at that location. As Officers arrived at that location the Defendant Agustín Lopez entered a vehicle behind the driver’s — in the driver’s seat and locked the doors. As Officers approached the vehicle Mr. Lopez put the vehicle into drive and attempted to leave that location in the direction of Corporal David Satterfield. The Officer fearing for his safety was forced to jump out of the way of the vehicle. Another Officer entered the vehicle through a passenger side window and placed the vehicle into park to stop the vehicle. Officers then pulled Mr. Lopez from the vehicle in an attempt to place him under arrest. And while doing so the Officers would testify that Mr. Lopez resisted that arrest by attempting to kick and strike them with his hands. Officer Satterfield would testify that he did not consent to being struck by the Defendant. He would also testify that they later caused a Motor Vehicle Administration check to be done on Mr. Lopez’s license status. And they would learn that he has in fact no Maryland Driver’s License. The Officers would testify that the Defendant Agustín Lopez is the person who struck him and did not have a driver’s license. And those events occurred in Dorchester County. During Lopez-Collazo’s sentencing on the assault and license convictions (counts Five and Eleven), conducted the same day (May 10, 2007), the prosecutor stated that Lopez-Collazo’s codefendant, Toro Lopez-Collazo, “had actually engaged in the assault on the Officers in the same episode” and, according to the prosecutor, “to a more serious degree....” ECF 24-4 at 12. He added that the codefendant was sentenced in State district court to three months for resisting arrest and sixty days “on a theft count,” and he requested for Lopez-Collazo a “sentence not to exceed that of the Codefendant.” ECF 24-4 at 12. During the same sentencing, Lopez-Col-lazo’s attorney stated, id. at 12-14: Your honor, I believe that that day there was a great deal of confusion. And Mr. Lopez’s brother was at the time with Mr. Lopez. And the brother took beers and put them-down his pants and attempted to steal them and remove, them from the store without paying for them. Mr. Lopez the Defendant saw his brother doing this. And Mr. Lopez had come to purchase beer which he did so. And he went out to his car. And it’s my understanding that all he wanted to do was basically leave and not to be involved with what his brother was doing. And I’m not sure if the police thought he was the individual who had stolen the beer or not. And I wonder about that just because they actually— the police took the beer that Mr. Lopez had purchased and took it-back to the store and returned it to the Clerk. So I think there may have been some confusion about what his involvement was inside the store as well. .But I think having had an opportunity to reflect on it, it would have been better to stay there and speak to the police and clarify it rather than attempting to leave. There was apparently a struggle because he was pulled from his car. And there was a struggle with police and Mr. Lopez actually received a broken nose and had to go to the hospital for treatment which I think also taught him probably a valuable lesson about how to interact with the police. But Mr. Lopez has been in a relationship with Ms. King who is present today as is her essentially. her stepfather. They have two children together. He works very .hard. He works — currently he’s working at Chesapeake House doing pretty much it sounds like anything they ask him to do as far as work in the kitchen or work on the grounds or whatever. And both Ms. King and her stepfather have told me that he is a. very good father and spends a good deal of time; with his children and helps to take care of them.... On his own behalf, through the aid of an interpreter, Lopez-Collazo stated: “I just want to say that.I was not trying to do anything wrong. All I wanted to do was just the place [sic] and go with my children. Is all I wanted to do is spend time with my kids and take care of them. That’s all.” ECF 24-4 at 15. Lopez-Collazo was. sentenced to eighteen months imprisonment, with all but seventy-two days suspended, and placed on eighteen months probation. ECF 24-3 at 26 (Probation/Supervision Order). B. Removal Proceeding, Reentry, Detainer & Indictment Deportation Officer Patrick J. Kearns testified at the motions hearing. See ECF 48 (“Apr. 23 Hearing Transcript”), at 10-82. Kearns is employed by the Office of Immigration, and Customs Enforcement (“ICE”), U.S. Department of Homeland Security. Id. at 10. In 2007, he was assigned to the Criminal Alien Program in Salisbury, Maryland. . Id. at 12. His duties included the identification of foreign 'nationals in detention centers on the Eastern Shore of Maryland. Id. at 11. At the time, he was the sole deportation officer in that area, and he handled eight detention facilities. Id. at 12. As part of his duties, Kearns routinely checked inmate rosters at various detention centers, ran record checks, and attempted to determine the status of non-citizens, ie., whether they were in the United States legally. ECF 48 at 12-13. While defendant was in custody at the Dorchester County Detention Center, Officer Kearns learned of defendant’s incarceration and his prior record. Id. at 14-17. He also determined that defendant had entered the country illegally. Id. at 20. Officer Kearns testified that he is now, and was in 2007, proficient in Spanish. Id. at 1920. He explained that it was his practice in 2007, as it is now, to converse with native Spanish speakers in Spanish, regardless of the individual alien’s English abilities. Id. at 19, 52, 75. Although he could not recall any details regarding Lopez-Collazo’s English language abilities at the time of them first encounter in 2007, he stated he would have interviewed defendant in Spanish. Id. at 18-19, 49. On or before June 7, 2007, Officer Kearns prepared a “Notice of Intent to Issue a Final Administrative Removal Order.” Id. at 45-46; ECF 14-1 (“Notice of Intent” or “NOI”). It was addressed to Lopez-Collazo, all in English. ECF 14-1. The Notice of Intent stated that ICE had determined that Lopez-Collazo was “amenable to expedited administrative removal proceedings,” pursuant to “section 238(b) of the Immigration and Nationality Act ... [ (“INA”) ], 8 USC 1228(b)...” Id. It also alleged that Lopez-Collazo was not a U.S. citizen, that he was a native and citizen of Mexico, and that he entered the “United States at or near an unknown place, on or about an unknown date,” without admission or inspection. Id. Further, the NOI alleged that Lopez-Collazo was convicted on May 10, 2007, of “the offense of Assault in the 2nd degree,” in violation of C.L. § 3-203, and convicted on October 16, 2003, of “Theft (less $500 value),” in violation of C.L. § 7-104. Id. The Notice of Intent charged defendant as deportable under 8 U.S.C. § 1101(a)(43)(F) and (G). ECF 14-1 at 1. Title 8 U.S.C. § 1101(a)(43)(F) establishes that a “crime of violence (as defined in section 16 of title 18 of the United States Code ... ”), with a term of imprisonment of at least one year, is an “aggravated felony” under the INA. Title 8 U.S.C. § 1101(a)(43)(G) establishes that a “theft offense ... or burglary offense” with a term of imprisonment of at least one year is an “aggravated felony” under the INA. The charges were predicated on the allegations described, respectively, for Second-Degree Assault and Theft Under $500. ECF 141. At the bottom of the “Charges” section, the Notice of Intent stated that ICE served the NOI “without a hearing before an Immigration Judge,” pursuant to “section 238(b)” of the INA. Id. In addition, the Notice of Intent contained an explanation of Lopez-Collazo’s “Rights and Responsibilities.” ECF 14-1. That section stated, in part, id.: You must respond to the above charges in writing to the Service address provided below 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 .... You may seek judicial review of any final administrative order by filing a petition for review within 14 calendar days after the date such final administrative order is issued, or you may waive such appeal by stating, in writing, your desire not to appeal. A box titled “Certificate of Service” indicates that Lopez-Collazo was personally served with the Notice of Intent on October 5, 2007. ECF 14-1. At the evidentia-ry hearing, Officer Kearns testified that his colleague, Kevin J. Towey, served Lopez-Collazo with the Notice of Intent. ECF 48 at 28-24; see also ECF 24-2; ECF 25-5 at 2 (showing full name of Officer Towey). It appears that Officer Tow-ey signed the Certificate of Service. ECF 14-1. Of import here, the NOI indicates that Officer Towey “explained and/or served [the] Notice of Intent to the alien in the English language.” Id. Officer Kearns stated that Officer Towey is able to communicate in Spanish, but Officer Kearns did not classify his colleague’s skill level. ECF 48 at 50. When asked if Towey “speaks Spanish proficiently,” Kearns responded: “He is — I don’t want to classify how he speaks Spanish, but he can communicate in Spanish.” Id. The Government did not call Officer Towey as a witness at the hearing. However, Towey remains an employee of the agency. Id. at 83. Kearns acknowledged that he talked to Towey about this case. Id. at 25. The NOI is a two-sided document. ECF 48 at 24. The back side of the Notice of Intent contains four boxes with text. See ECF 25-5 at 2 (“Waiver”). The first is titled, in bold letters: “I ACKNOWLEDGE THAT I HAVE RECEIVED THIS NOTICE OF INTENT TO ISSUE A FINAL ADMINISTRATIVE REMOVAL ORDER.” Id. It includes signature and date lines for a “respondent” and an “Officer,” Id. Both Lopez-Collazo and Officer Towey signed on October 5, 2007. Id. The second text box is titled: “I Wish To Contest.” ECF 25-5 at 2. It contains four statements, each with a corresponding checkbox next to it. The four statements are: “I am a citizen or national of the United States”; “I am a lawful permanent resident of the United States”; “I was not convicted of the criminal offense described in allegation number 6 above”; “I am attaching documents in support of my rebuttal and request for further review.” Id. Allegation number 6 in the Notice of Intent pertained only to Lopez-Collazo’s conviction for Second-Degree assault. ECF 14-1. The second text box is blank. ECF 25-5 at 2. In other words, no check marks were placed next to any of the four statements. The third text box is titled: “I Do Not Wish To Contest.” It includes two statements, each with a checkbox next to it. ECF 25-5 at 2. The first statement says, id.-. 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. I wish to be deported to ... Mexico.... The second statement says: “I also waive the 14 day period of execution of the Final Removal Order.” ECF 25-5 at 2. The checkboxes next to both statements in the third text box were checked, and both Lopez-Collazo and Officer Towey signed inside the third text box, with the same date as the date of service of the Notice of Intent, October 5, 2007. Id. The fourth text box provides an address for return of the form to ICE. Id. In an Affidavit submitted to this Court, Lopez-Collazo avers that he spoke “very little” English in 2007. ECF 25-5 at l. With respect to the Waiver itself, Lopez-Collazo also asserts that the Waiver “was never translated into Spanish”; that he “did not understand what he was signing”; and he did not know that he “had a right to challenge” the Removal Order. Id. Rather,, he states: “I believed I was just signing a document ! was required to sign by a government official.” Id. Officer Kearns testified that he is not familiar with the' so-called categorical approach used by courts to determine whether a particular criminal offense constitutes an aggravated felony under the INA. ECF 48 at 44-45. He submitted certain State court documents and Lopez-Collazo’s records of conviction to ICE’s Office of Chief Counsel for review as to the legal sufficiency of the charges and removal Id. at 21, 43-44, 79-80. However, he did not submit the guilty plea transcripts for either conviction. Id. at 82. On October 19, 2007, ICE issued a “Final Administrative Removal Order” addressed to Lopez-Collazo. Removal Order, ECF 14-2. The Removal Order was signed by Marion Dillis, “Deputy Field Office Director” for ICE. Id. In the Removal Order, Dillis stated, id.: Based on the allegations set forth in the Notice of Intent to Issue a Final Administrative Removal Order and evidence contained in the administrative record, I ... make the following findings of fact and conclusions of law.... I ... find that you have a final conviction of an aggravated felony as defined in sections 101 (a)(43)(F) and 101(a)(43)(G) of [the Immigration and Nationality Act], and are ineligible for any relief from removal that the Attorney General may grant in an exercise of discretion. I further find that the administrative record establishes by clear, convincing, and unequivocal evidence that you are deportable as an alien convicted of an aggravated felony pursuant to ... 8 U.S.C. § 1227(a)(2) (A)(iii) (Emphasis added). Neither defendant nor the Government has submitted a copy of the administrative record on which Director DiHs relied. Lopez-Collazo was removed from the United States to Mexico in November 2007. Response, ECF 24 at 2. In 2008, after defendant was removed, his girlfriend gave birth to their second child, a United States citizen. Reply, ECF 37 at 10. Lopez-Collazo reentered the United States without inspection sometime between his removal in November 2007 and June 2014. On June 13, 2014, Lopez-Collazo was arrested in Dorchester County, Maryland “and charged with DUI, among other charges.” Motion to Suppress, ECF 13 at 1. At the motions hearing on April 23, 2015, Officer Kearns testified thát, during a weekend in June 2014, he was working in Ocean City, Maryland, again checking jail rosters on the Eastern Shore, and came upon defendant’s name. ECF 48 at 29. At the time, defendant was in custody on the DUI charge. Id.; ECF 13 at 1. Officer Kearns ran a check of defendant’s name. ECF 48 at 29. Although Kearns did not initially recognize defendant’s name, Kearns’s involvement with defendant “came back” to Kearns when he pulled defendant’s records. Id. at 30. De-' fendant’s records did not reflect that he had permission to reenter the United States, and such permission' would have been required, according to-Kearns, because of the prior removal in 2007. Id. at 32-34. As a result, Officer Kearns obtained an ICE detainer that was lodged against defendant. Id. at 34. “[0]n August 18, 2014, Lopez-Collazo pled guilty to DUI,” and he was sentenced to 60 days incarceration ...,” which defendant notes “was essentially a time-served sentence.” Motion to Suppress, ECF 13 at 1; accord Response, ECF 24 at 3. On August 20, 2014, after Lopez — Colla-zo was released from State custody, ICE took Lopez-Collazo into custody, pursuant to'the detainer lodged against him on June 14, 2014. ECF 48 at 34-35; Reply, ECF 25 at 16; ECF 24 at 3; As noted, in October 2014 a federal grand jury indicted Lopez-Collazo on the charge of illegal reentry, in violation of 8 U.S.C. § 1326(a) & (b)(2). ECF 1. At the motions hearing on. April 23, 2015, defendant presented the testimony of Thomas J. Ragland, Esquire, an expert with impressive credentials in the field of immigration law and practice. In his Affidavit (ECF 25-4) ,and on the stand, Ragland recounted that he has been practicing immigration law exclusively for twenty years, including ten years as an attorney with the United States Department of Justice and ten years in private practice, devoted exclusively to immigration law. See ECF 25^1 at 1; Apr. 23 Hearing Transcript, ECF 48 at 90-91. For eight of his ten years with the federal government, Ragland worked as an attorney with the Board of Immigration Appeals, including three years as a supervisor. ECF 48 at 88-89. He has argued or briefed immigration cases before almost every federal court of appeals. Id. at 92. Ragland testified that, but for ICE’s characterization of defendant’s convictions as aggravated felonies, defendant would have been eligible for .a form of discretionary relief available under the INA, known as “voluntary departure.” ECF 48 at 109-112; see 8 U.S.C. § 1229c(a) (pre-order voluntary departure) and § 1229c(b) (post-order voluntary departure). See also Dada v. Mukasey, 554 U.S. 1, 8, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008) (“Voluntary departure is a discretionary form of relief that allows certain favored aliens — either before the conclusion of removal proceedings, or after being found deportable — to leave the country willingly.”). He explained that, if an alien obtains pre-order voluntary departure, the alien is able to leave the country of his own accord, without entry of an order of removal, ECF 48 at 105, 107. In Ragland’s experience, pre-order voluntary departure is not “hard to get.” Id. at 106. Indeed, Ragland characterized it as “the lowest hanging fruit, of discretionary relief,” id. at 108, a sort of “lazy request” for immigration attorneys to seek. Id. at 134. On the basis of the record concerning defendant, Ragland thought defendant would have had “a good pre-order voluntary departure request” and Ragland felt “fairly confident” that, based on applicable factors, defendant would have been awarded that relief. ECF 48 at 112; see also id. at 143. ’ Defendant also submitted quantitative evidence that in 2007 the great majority of aliens in enforcement proceedings “accepted an offer to return to their home countries without a removal order.” Department of Homeland Security, Office of Immigration Statistics, “Immigration Enforcement Actions: 2007,” Annual Report (Dec. 2008), at ECF 37-1 at 1. See also ECF 48 at' 150-153. According to the exhibit, approximately 891,000 of the 1.2 million aliens who left the country during enforcement proceedings in 2007 accepted such an offer. ECF 37-1 at 1 (showing that “more than 319,000 aliens were removed from the United States” in 2007 and “[m]ore than 891,000 ... accepted an offer to return to their home countries without a removal order ... ”). However, the report further states that “[ajbout 83 percent of [those voluntary] returns involved Mexican or Canadian alien nationals who were apprehended by the Border Patrol,” at the border. Id. at 4. Thus, the number does not reflect the likelihood of an immigration judge granting voluntary departure in the context of remqyal proceedings. Id. II. Discussion A. Collateral Attack Under 8 U.S.C. § 1326 Title 8 U.S.C. § 1326(a) provides, in relevant part, that “any alien who — (1) has been denied admission, excluded, deported or removed ..., and thereafter (2) enters, attempts to enter or is at any time found, in the United States, unless ... the Attorney General has expressly consented ... shall be fined under Title 18, or imprisoned not more than 2 years, . or both.” Subsection (b)(2) provides that any alien “whose removal was subsequent to a conviction for commission of an aggravated felony ... shall be fined ..., imprisoned not more than 20 years, or both;.... ” And, Congress has defined what it means by “aggravated felony.” 8 U.S.C. § 1101(a)(43). A lawful prior order of deportation or removal is an element of the offense of illegal reentry under 8 U.S.C. §.1326. United States v. Mendozar-Lopez, 481 U.S. 828, 839, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987); United States v. El Shami, 434 F.3d 659, 663 (4th Cir.2005); Smith v. Ashcroft, 295 F.3d 425, 431 (4th Cir.2002). In United States v. Mendoza-Lopez, 481 U.S. at 831, 107 S.Ct. 2148, the respondents moved to dismiss indictments charging illegal reentry, on the ground that their joint deportation hearing was fundamentally unfair. They complained that the Immigration Law Judge inadequately informed them of their right to counsel and accepted “unknowing waivers of the right to apply for suspension of deportation.11 ]” Id. at 881,107 S.Ct. 2148. The Supreme Court determined that, when an alien is charged with criminal reentry, due process requires that an alien must be able to challenge the lawfulness of a prior order of deportation if, inter alia, the alien was deprived of judicial review. The Mendozar-Lopez Court reasoned, id. at 837-39,107 S.Ct. 2148 (internal citations and footnotes omitted) (emphasis in original): Our cases establish that where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding. This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense. ... Depriving an alien of the right to have the disposition in a deportation hearing reviewed in a judicial forum requires, at a minimum, that review be made available in any subsequent proceeding in which the result of the deportation proceeding is used to establish an element of a criminal offense. The Government-petitioner asked the Court “to assume that respondents’ deportation hearing was fundamentally unfair,” and the Court “accept[ed] the legal conclusions of the court below that the deportation hearing violated due process,” because the Immigration Judge failed to “explain adequately [respondents’] right to suspension of deportation or their right to appeal.” Mendozar-Lopez, 481 U.S. at 839-40, 107 S.Ct. 2148. Thus, the Supreme Court did not define what defects an alien could show to prove that the prior deportation proceeding was fundamentally unfair. The Court also expressly declined “to enumerate which procedural errors are so fundamental that they may functionally deprive the alien of judicial review, requiring that the result of the hearing in which they took place not be used to support a criminal conviction.” Id. at 839 n. 17, 107 S.Ct. 2148. It did, however, note that “in the context of criminal proceedings, some errors necessarily render a trial fundamentally unfair,” such as “use of coerced confession, adjudication by a biased judge,” “mob violence, [and] knowing use of perjured testimony.” Id. It added: “While the procedures required in an administrative proceeding are less stringent than those demanded in a criminal trial, analogous abuses could operate ... to deny effective judicial review of administrative determinations.” Id. Ultimately, the. Court determined that the Government could not rely on respondents’ prior orders of deportation “as reliable proof of an. element of a criminal offense.” Id. at 840,107 S.Ct. 2148. In its view, “the waivers of [respondents’] fights to appeal,” which were entered at their deportation hearing, “were not considered or intelligent,” in light of the Immigration Judge’s failure to “advise respondents properly of their eligibility to apply for suspension of deportation” and the judge’s acceptance of waivers that “were not the result of considered judgments.” Id. See also Smith, 295 F.3d. at 431 (“The Court concluded [in Mendozar-Lopez ] that since lawful deportation was a material element of the statutory offense, due process required, in this limited situation, a pretrial review of whether the prior deportation order was lawful.”) (Emphasis in original). In 1996, as part of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. 104-132, Title IV, § 441(a), 110 Stat.-1214 (1996), Congress effectively codified the collateral attack test established by Mendozar-Lopez, at 8 U.S.C. § 1326(d); see United States v. Wilson, 316 F.3d 506, 515 n. 1 (4th Cir.2003) (Motz, J., concurring). The statute states: In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) of this section or subsection (b) of this section unless the alien demonstrates 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 óf thé order was fundamentally unfair. As the text of the subsection makes clear, “a defendant must satisfy all three [requirements] in order to prevail” on a challenge to the validity of the prior order. El Shami, 434 F.3d at 663 (citation omitted). “However, if the defendant satisfies all three requirements, the illegal reentry charge must be dismissed as a matter of law.” Id. ■ B. Section 1326(d) Elements One & Two Lopez-Collazo offers three arguments in support of his contention that he has established the first two elements of '§ 1326(d). First, Lopez-Collazo argues that he “exhausted the administrative remedies available to him” because “he effectively did not have any” administrative remedies available to him. ECF 14 at 6. He relies, inter alia, on a decision of the Fifth Circuit, Valdiviez-Hernandez v. Holder, 739 F.3d 184, 187 (5th Cir.2013), which he accurately describes as “holding that an alien did not have any administrative remedies to exhaust in his expedited removal proceedings [under 8 U.S.C. § 1228] because he could not challenge the legal determination that his conviction was an aggravated felony” under the applicable regulations, at 8 C.F.R. § 238.1(d)(2)®, (ii). ECF 14 at 6-7. Rather, the permitted challenges on the applicable waiver form were solely of a factual nature. Valdiviez-Hemandez, 739 F.3d at 187. Second, defendant contends that the deportation proceedings improperly deprived him of the opportunity for judicial review because he “did not understand what judicial review was available to him” before he waived his right to judicial review. He points out that neither the Notice of Intent nor the Waiver sufficiently explained his right to judicial review, and the immigration officer who served him did not explain “the meaning of a ‘petition for review or what habeas corpus relief might be available to him.” ECF 25 at 13. Third, defendant maintains that, “[e]ven if the Court finds that [he] failed to exhaust his administrative remedies and was not deprived of judicial review, the Court nonetheless should find these two requirements satisfied,” because his waiver of these rights was not knowing and intelligent. ECF 25 at 15. Specifically, Lopez-Collazo complains that he “was not provided with a written translation of the Notice of Intent or an explanation-of the document in his native Spanish” and, therefore, his waiver was invalid. Id. at 14-16. In its Response, and at oral argument, the Government opposed Lopez-Collazo’s first and second arguments, ie., that he exhausted all remedies available to him and that deficiencies in the Notice of Intent and Waiver, coupled with the immigration officer’s failure to explain defendant’s right to judicial review, effectively, deprived defendant of judicial review. See ECF 24 at 7-12. According to the Government, defendant could have -contested the determination that his prior convictions constituted aggravated felonies under the applicable regulations “by timely filing a request for the evidence against him in response to the [Notice of Intent].” Id. at 8 (citing, e.g., Lubowa v. U.S. Atty. Gen., 315 Fed.Appx. 123, 125 (11th Cir.2008)). And, the Government pointed out that 8 U.S.C. § 1228(b)(3) expressly provides for judicial review of any order issued'under 8. U.S.C. § 1228. Subsection (b)(3) of 8 U.S.C. § 1228 states: “The Attorney General may not execute any order described in paragraph (1) until 14 calendar days have passed from the date that such order was issued, unless waived by the alien, in order that the alien has an opportunity to. apply for judicial review under section 1252 of this title.” The Government also insisted that Lopez-Collazo cannot establish elements one and two because he waived his rights to both. ECF 24 at 6-7, 10. However, in its briefings on the Motion to Dismiss, the Government did' not respond to Lopez-Collazo’s argument that his Waiver was invalid because he was not advised of his rights in Spanish. See Supplemental Response,- ECF 36 at 2. And, at oral argument, the Government essentially conceded this point. “An alien’s waiver of his appellate rights must be ‘knowingly and intelligently made.’” Narine v. Holder, 559 F.3d 246, 249-50 (4th Cir.2009) (quoting In re Rodriguez-Diaz, 22 I. & N. Dec. 1320, 1322 (B.I.A.2000) (citing Mendoza-Lopez, 481 U.S. at 840, 107 S.Ct. 2148)). A waiver is invalid if it is not knowingly and intelligently made. See, e.g., Narine, 559 F.3d at 249-50; Richardson v. United States, 558 F.3d 216, 219-20 (3d Cir.2009) (“An alien validly waives his rights associated with a deportation proceeding only if he' does so voluntarily and intelligently.”). And, as the Government conceded at the hearing, it bears the burden to prove that any waiver was knowing and intelligent. See United States v. Gomez, 757 F.3d 885, 893 (9th Cir.2014) (“[W]e have said unmistakably that ‘the government bears the burden of proving valid waiver in a collateral attack of the underlying removal proceedings.’”) (citation and alteration omitted); United States v. Reyes-Bonilla, 671 F.3d 1036, 1044 (9th Cir.2012) (“The government bears the burden of proving valid waiver-in a collateral attack of the underlying removal proceedings, and it must do so by clear and convincing evidence.”); see also Narine, 559 F.3d at 249-50; United States v. Merino-Hernandez, 46 F.Supp.3d 602, 607 (D.Md.2014). The Government has not met its burden. Merino-Hemandez, 46 F.Supp.3d 602, is instructive. There, the Certificate of-Service on the defendant’s- “Notice of Intent to Issue a Final Administrative Removal Order” stated that the serving agent “explained and/or served” the notice to Merino-Hernandez “in the English/Spanish language.” Id. at 605. The defendant “testified that during the meeting with immigration agents in which they reviewed the Notice of Intent, the agents did not translate the [notice] in toto, but that a Spanish-speaking agent explained some things to him.” Id. (emphasis in original). However, the defendant also “contended] that the sections that he signed at the immigration agent’s direction had not been translated for him.” Id. at 608. And, the defendant asserted that, at the relevant time, “he understood very little English.” Id. Based on that “uncontradicted evidence,” Judge Quarles found that the defendant’s waiver was not “knowing and voluntary.” Id. In this case, it is uncontested that Lopez-Collazo’s native language is Spanish. Further, it is undisputed, based on the Certificate of Service on the Notice of Intent, that the NOI and the Waiver on its back side were “explained and/or served” in English. See ECF 14-1 at 1. And, the uncontradicted evidence is patently clear that in 2007 Lopez-Collazo 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 hot read. This is evidenced by' the guilty plea proceedings as to defen--dant’s two prior State offenses, which reflect his need for a Spanish interpreter. See ECF 24-4 at 5-7; ECF 24-5 at 3. And, one of those plea colloquies occurred shortly before the immigration proceedings at issue here. See ECF 24-4 at 5-7. There is no basis to conclude that, in the interim between the assault conviction and the removal proceedings, defendant would have .gained proficiency in English. In addition, as noted, Lopez-Collazo avers in his Affidavit that he spoke “very little” English in 2007. ECF 25-5 at 1. Notably, the Government has provided no. evidence to the contrary. It did not call Officer Towey, the agent who served Lopez-Colla-zo with the Notice of Intent and who witnessed the Waiver, even though, at oral argument, it stated that Officer Towey is still an ICE employee. ECF 48 at 25. The Ninth Circuit has determined that a “waiver of rights cannot be found to have been considered or intelligent” if the advisement is not provided in a language the alien can understand. Gomez, 757 F.3d at 893-96; Reyes-Bonilla, 671 F.3d at 1044; see also United States v. Ramos, 623 F.3d 672, 681 (9th Cir.2010) (“Ramos’s waiver of appeal and of the due process rights specified in the Stipulated Removal form was not ‘considered or intelligent’ because he did not receive a competent Spanish language translation of his right to appeal when he signed the form.”). Although this Court was unable to find a Fourth Circuit case that directly addressed the question, I am persuaded that Lopez-Collazo’s waiver cannot be considered knowing and intelligent because “there- is no evidence that [Lopez-Collazo] was first advised of those rights in a language he could .understand.” Reyes-Bonilla, 671 F.3d at 1044. “Courts have generally held that ‘the exhaustion requirement [of § 1326(d)(1) ] must be excused where an alien’s failure to exhaust results from an invalid waiver of the right to an administrative appeal.’ ” United States v. Ortiz, 488 Fed.Appx. 717, 718 (4th Cir.2012) (per curiam) (quoting United States v. Sosa, 387 F.3d 131, 136 (2d Cir.2004)) (alteration in Ortiz); see also Reyes-Bonilla, 671 F.3d at 1043 (“If Reyes did not validly waive his right of appeal, the first two requirements under § 1326(d) will be satisfied.”); United States v. Martinez-Rocha, 337 F.3d 566, 569 (6th Cir.2003). And, Mendoza-Lopez established that an alien’s invalid waiver of the right to appeal deprives the alien of judicial review. 481 U.S. at 840, 107 S.Ct, 2148 (“Because the waivers of their rights to appeal were not considered or intelligent, respondents were deprived of judicial review of their deportation proceeding.”). Accordingly, the invalidity of Lopez-Col-lazo’s waiver of his right to administrative remedies and judicial review excuses his burden to show that he exhausted available remedies and suffices to show that the deportation proceeding deprived him of judicial review. See Mendoza-Lopez, 481 U.S. at 840, 107 S.Ct. 2148; Ortiz, 488 Fed.Appx. at 718; Merino-Hernandez, 46 F.Supp.3d at 608; see also United States v. Segundo, 4:10-CR-0397, 2010 WL 4791280, at *2, *5, *9 (S.D.Tex. Nov. 16, 2010) (excusing defendant from showing administrative exhaustion and finding defendant was functionally deprived of judicial review where, although defendant was served in a mix of Spanish and English with forms matching the Notice of Intent and Waiver here, the waiver provisions were not presented or explained to the defendant in Spanish). In sum, I agree with Lopez-Collazo that his waiver was invalid, that his invalid waiver excuses his burden to show that he exhausted available administrative remedies, and that it suffices to show that the deportation proceedings improperly deprived him of the opportunity for judicial review. Therefore, I need not reach defendant’s alternative arguments that regulations applicable to his expedited removal procedure do not provide any available remedies and that defects in the Notice of Intent and Waiver forms functionally deprived him of judicial review. C. Section 1326(d) Element Three ' “In order 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.” Wilson, 316 F.3d at 510; accord, e.g., United States v. Cisneros-Garcia, 159 Fed.Appx. 464, 467 (4th Cir.2005); see also Gomez, 757 F.3d at 892; United States v. Gonzalez-Villalobos, 724 F.3d 1125, 1129-30 (9th Cir.2013); United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004). It is this element on which the Government has focused, vigorously insisting that defendant cannot establish fundamental unfairness because he cannot show either a violation of his due process rights or prejudice. To be sure, the matter is a thorny one. 1. Violation of Due Process Rights Defendant advances three arguments to support his contention that his 2007 removal proceeding violated his due process rights. First, Lopez-Collazo argues that ICE incorrectly determined that his pre-removal convictions were “aggravated felonies” within the meaning of the INA. See ECF 25 at 2-9; Removal Order, ECF 14-2 (determining that defendant was “deportable as an alien convicted of an aggravated felony...”).' In support of defendant’s claim that his prior convictions were not aggravated felonies under the INA, he relies, inter alia, on the Supreme Court’s decision in Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013), decided almost six years after defendant’s removal in November 2007. Further, defendant contends that because his “prior convictions were not aggravated felonies,” he was “not removable.?’ Reply, ECF 25 at 2. In his Supplemental Response, defendant clarified that his due process rights were violated because he was not removable “as charged.” ECF 37 at 1 (citing, e.g., United States v. Aguilera-Rios, 769 F.3d 626, 637 (9th Cir.2014)). Second, Lopez-Collazo contends that his rights were violated when the “immigration official” failed to “advise him that he was eligible for relief from removal, such as voluntaiy departure.” ECF 25 at 2-3 (citing, e.g., United States v. Garcia-Santana, 774 F.3d 528, 533 (9th Cir.2014)). Because, under the INA, aliens who are not lawful permanent residents and who are convicted of aggravated felonies are not eligible for any kind of discretionary relief, see 8 U.S.C. § 1228(b)(5), defendant’s argument on this point is also premised on his contention that his pre-rémoval convictions were not aggravated felonies. ECF 25 at 2-9. Third, during oral argument, defense counsel asserted that defendant’s rights were violated when he was deprived of the fundamental procedural due process protections described in El Shami, with respect to an “opportunity to be heard at a meaningful time and in a meaningful manner.” El Shami, 434 F.3d at 664-65 (citations omitted). In particular, defense counsel argued that the notice of the charges against Lopez-Collazo was defective because they were not read to him in Spanish; he was deprived of his right to a hearing; and he was deprived of his right to a fair opportunity to be heard because, in effect, he received no opportunity to be heard. As an initial matter, the Government urges that all of defendant’s due process arguments must fail becaüse 1) Lopez-Collazo’s two prior State convictions were aggravated felonies under the law that applied at the time, and 2) Descamps does not apply “retroactively” on collateral review. ECF 36 at 3-9. At oral argument, the Government agreed that, “under current law,” Lopez-Collazo’s Maryland conviction for Second-Degree Assault is not a crime of violence under. 18 U.S.C. § 16, or an aggravated felony under the INA. But, it maintained that defendant’s conviction for Theft Under $500 is an aggravated felony under the INA under current law, although it cited no authority to. support its position. The Government further asserts that, even assuming defendant’s pre-removal convictions were not aggravated felonies in 2007, defendant’s first two due process arguments fail because no due process rights were implicated under the circumstances of this case. ECF 36 at 2-3. With regard to defendant’s first'argument, the Government distinguished this case from Aguilerctr-Rios, 769 F.3d at 633, by pointing out, for example, that the alien in Aguilera-^Rios was a lawful permanent resident, who thus “had the right to be in the United States, ... but for the [Immigration Judge’s] determination that he was removable....” Id. Therefore, Aguil-era-Rios had a liberty interest in his “re-movability,” subject to due process protections. In contrast/defendant is an illegal alien, with no right to be in this country. As to defendant’s second contention, the Government argued that aliens have no constitutionally protected interest in obtaining discretionary relief, such as voluntary departure. And, by extension, Lopez-Collazo had no protected right to be informed of his eligibility for such relief, according to the Government. See EGF 36 at 3; Wilson, 316 F.3d at 510; United States v. Aguirre-Tello, 353 F.3d 1199, 1200-01 (10th Cir.2004) (en banc). The Government did not respond to defendant’s third argument under El Shami, which defendant presented at oral argument. But, at oral argument, the Government repeatedly insisted that defendant’s Motion must fail because Lopez-Collazo could not point to any fundamental defect in the deportation proceeding itself, amounting to a travesty of justice that would render its results unreliable. For the reasons discussed below, I conclude that Lopez-Collazo has established a fundamental defect in the deportation proceeding itself. In particular, Lopez-Colla-zo was deprived of his fundamental right to “an opportunity to be heard at a meaningful time and in a meaningful manner.” El Shami, 434 F.3d at 664-65 (citations omitted). “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings;” Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); see also, e.g., Yamataya v. Fisher, 189 U.S. 86, 100-01, 23 S.Ct. 611, 47 L.Ed. 721 (1903) (“[T]his court has never held ... that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles* that inhere in ‘due process of law-One of these principles is that no person shall be deprived of his liberty without opportunity, at some time, to be heard ... in respect of the matters upon which that liberty depends.... ”). In the context of deportation or removal proceedings, “an alien’s ‘fundamental’ right of due process ‘is the opportunity to be heard at a meaningful time and in a meaningful manner.’” El Shami, 434 F.3d at 664-65 (quoting United States v. Torres, 383 F.3d 92, 104 (3d Cir.2004)); see also Aguirre-Tello, 353 F.3d at 1200-01. “ ‘More specifically, ... due process requires an alien who faces [removal] be provided (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 (quoting Torres, 383 F.3d at 104) (alterations in El Shami). In El Shami, 434 F.3d 659, the defendant appealed his conviction for unlawful reentry of a deported alien under 8 U.S.C: §• 1326(a) and (b)(2). ■ He urged the Fourth Circuit to vacate his conviction, claiming he satisfied all three requirements for a collateral attack under 8 U.S.C. §■ 1326(d). Id. at 661. The Court “conclude[d] that the prior deportation order was flawed” and vacated the. conviction. M . El Shami “immigrated to the United States from Egypt in 1980 and became a permanent resident alien in 1984.” Id. at 661. In 1993, the Immigration and Naturalization Service (“INS”) initiated removal proceedings, charging that El Shami “was subject to deportation under the [INA] for being previously convicted of two crimes of moral turpitude: criminal sexual contact and aggravated arson.” Id. at 661-662. El Shami did not appear at his final deportation show cause hearing, but “the immigration judge proceeded in absentia and ordered him deported to Egypt.” Id. at 662. When El Shami was later charged with illegal reentry under 8 U.S.C. § 1326(a) & (b)(2), he filed a motion to dismiss the indictment, arguing that “defects in his 1993 deportation proceedings rendered” his prior order invalid under § 1326(d). Id. at 661-62. At a hearing on El Shami’s motion to dismiss, El Shami testified that he never received notice of the final hearing date. Id. at 662. Moreover, the Government produced no evidence that it had provided El Shami or his attorney with “written notice of the date and time of the hearing.” Id. Thus, El Shami contended that he was denied the opportunity to challenge the factual or legal basis for deportation; deprived of the opportunity to apply for relief from deportation under Section 212(c) of the INA Act. 8 U.S.C. § 1182(c); and denied his right to administrative and judicial review. Id. at 663. The district court denied the motion to dismiss. The failure to provide the required notice satisfied the first two elements for a collateral attack under 8 U.S.C. § 1326(d), according to the Court. Id. at 664. The Fourth Circuit also determined that the failure of the INS “to send El Shami written notice of his deportation hearing deprived him of due process.” Id. It reasoned: “Although El Shami was aware of the charges against him, the INS’s failure to provide notice ... deprived him of the opportunity to contest those charges or otherwise seek' relief from deportation from the administrative tribunal.” Id. at 665. Notably, nothing in the opinion of the Court indicates that its decision turned on the fact that El Shami was a lawful permanent resident, or that its rationale is limited only to lawful permanent residents. Here, as discussed, while Lopez-Collazo was in custody, he was served with the Notice of Intent by ICE Officer Towey and signed the Waiver on the same day. See ECF 14-1; ECF 255 at 2; ECF 48 at 54, 59. There is abundant evidence that, at the time, Lopez-Collazo required translation assistance in order to understand the NOI, the Waiver, and legal proceedings conducted in English. See Plea Colloquy & Sentencing, ECF 24-4 at 5-7; ECF 24-5 at 3. Yet, the Notice of Intent itself shows that Officer Towey “explained and/or served” it to Lopez-Collazo in English, ECF 14-1, and there is no evidence that any part of the Notice of Intent or the Waiver was translated into Spanish or explained to Lopez-Collazo in Spanish. Nor is there evidence that Officer Towey was capable of speaking Spanish at a level sufficient to ensure Lopez-Collazo could make a considered and intelligent decision about whether to challenge removal, waive his rights, or to seek the assistance of an attorney. “Courts have recognized the importance of a competent translator to ensure the fairness of proceedings to applicants who do not speak English.” Marincas v. Lewis, 92 F.3d 195, 204 (3d Cir.1996); see also Perez-Lastor v. I.N.S., 208 F.3d 773, 778 (9th Cir.2000) (“It is long-settled that a competent translation is fundamental to a full and fair hearing.”); Nazarova v. I.N.S., 171 F.3d 478, 484 (7th Cir.1999) (“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.”); Augustin v. Sava, 735 F.2d 32, 37 (2d Cir.1984) (“A hearing is of no value when the alien and the judge are not understood .... The very essence of due process is a ‘meaningful opportunity to be heard.’ ”); see also Tejeda-Mata v. I.N.S, 626 F.2d 721, 726 (9th Cir.1980), cert. denied, 456 U.S. 994, 102 S.Ct. 2280, 73 L.Ed.2d 1291 (1982). In light of defendant’s language barrier, there is no basis to conclude that he understood the charges against him or his rights. Moreover, even if service of the NOI in English provoked reasonable inquiry, there is no basis to conclude that Lopez-Collazo had time to consult with anyone in his native language about its contents before he waived his rights to contest it. To the contrary, the 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 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. Under the standard articulated in El Shami, Lopez-Collazo was deprived of his fundamental right to an “opportunity to be heard at a meaningful time and in a meaningful manner.” El Shami, 434 F.3d at 664-65 (citations omitted). See also Segundo, supra, 2010 WL 4791280, at *6-9 (finding that prior expedited removal proceeding of defendant charged under § 1326 “could not have comported with due process when he was not apprised of his right to [obtain] counsel, his waiver of rights to counsel and appeal were obtained unknowingly, and the removal proceeding took place in a language he did not understand”); United States v. Higareda-Ramirez, 107 F.Supp.2d 1248, 1256 (D.Haw.2000) (granting motion to dismiss indictment for illegal reentry) (“One need not have an exceptional imagination to conceive of the horrors that might be perpetrated if aliens could be convicted based on deportation orders procured in unrecorded and thus fully insulated proceedings conducted in a language unintelligible to the unrepresented aliens.”). Accordingly, Lopez-Collazo has' established that “his due process rights were ■violated by defects in his underlying deportation proceeding.” Wilson, 816 F.3d at 510. Because I find for defendant on ■this ground, I need not reach the parties’ remaining arguments with regard to defendant’s due process rights. 2. Prejudice binder 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.” El Shami, 434 F.3d at 665 (citing Wilson, 316 F.3d at 509). In order to show actual prejudice, the 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 (citing Wilson, 316 F.3d at 511); see also Cisneros-Garcia, supra, 159 Fed.Appx. at 467 (“A showing, of prejudice requires a defendant to prove a reasonable likelihood that, but for the errors complained of, he would not have been deported.”) (citing Wilson, 316 F.3d at 510). The Tenth Circuit, sitting en banc, recently determined that the “reasonable probability” standard adopted by most circuits, including the Fourth Circuit, requires a showing lesser than a standard that requires aliens to show that “the outcome of his case would have been different.” Aguirre-Tello, 353 F.3d at 1207-08. Defendant offers two arguments in sup.port of his claim of prejudice. First, he argues that his removal when he was not removable “as charged” constitutes prejudice. ECF 25 at 9 (“He suffered prejudice in the first instance because he was removed when he should not have been.”) (citing, e.g., “United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir.2006) (holding that removal of alien when he should not have been was clearly prejudice)”). Second, defendant argues he “was further prejudiced because there was a reasonable probability that, but for the errors in the removal proceeding, he would have received voluntary departure.” ECF 25 at 10 (citing, e.g., Wilson, 316 F.3d at 510, and United States v. Garcia-Santana, 774 F.3d 528, 533 n. 1 (9th Cir.2014)). As with some of defendant’s due process arguments, described supra, both of defendant’s prejudice arguments rely on his contention that his two prior convictions were erroneously classified as aggravated felonies. In response, the Government advances three arguments. First, at oral argument the Government reiterated its belief that Lopez-Collazo suffered no prejudice because his pre-removal convictions were aggravated felonies at the time of his removal. Thus, he was removable as charged and was not eligible for voluntary departure. Second, the- Government -argues that, even if defendant was not removable “as charged,” it is undisputed that he was still “removable,” because he was never lawfully present in the United States. ECF 36 at 10. Therefore, it posits that Lopez-Collazo “eventually would have been removed anyway, irrespective of whether he was classified as an ‘aggravated felon’ or not.” Id. Third, the Government argues that, even if Lopez-Collazo were eligible for voluntary departure, it was not “plausible” that an immigration judge would have exercised discretion in the alien’s favor. ECF 36 at 10 (citing United States v. Valdez-Novoa, 780 F.3d 906, 917 (9th Cir.2014)). Under Supreme Court and Fourth Circuit precede