United States v. Hernandez-Arias

• Decision Date: 05 August 2014
• Docket Number: No. 12–50193.,12–50193.
• Citation: 757 F.3d 874
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jose Luis HERNANDEZ–ARIAS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

757 F.3d 874

UNITED STATES of America, Plaintiff–Appellee,

v.Jose Luis HERNANDEZ–ARIAS, Defendant–Appellant.

No. 12–50193.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 8, 2013.

Filed March 21, 2014.

Amended Aug. 5, 2014.

Harini P. Raghupathi, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant–Appellant.

Laura E. Duffy, Bruce R. Castetter, and Stephen P. Clark (argued), Office of the United States Attorney, San Diego, CA, for Plaintiff–Appellee.

Before: SUSAN P. GRABER, JOHNNIE B. RAWLINSON, and PAUL J. WATFORD, Circuit Judges.

Order; Opinion by Judge RAWLINSON; Concurrence by Judge WATFORD.

RAWLINSON, Circuit Judge:

ORDER

The opinion filed on March 21, 2014 is hereby amended as follows:

Following page 12, first full paragraph, the following footnote is appended:

³Our review in this case is confined to the operation of IRCA and its unique implementing regulations. Our disposition of this case does not contradict Hing Sum v. Holder, 602 F.3d 1092 (9th Cir.2010), which holds that the word “admission,” either at the border or through adjustment of status or some other administrative process, generally refers to a procedural event rather than a substantive status. Id. at 1096; see also id. at 1099–1101 (tracing the evolution of the statutory definition of “admission”). Just as Congress had authority to adopt an admission-based removal system over an entry-based deportation system in the Illegal Immigration and Immigrant Responsibility Act of 1996, so too did it have the authority to dictate the specific contours of IRCA's temporary resident provisions, which include an adjustment of status process (and a regulatory definition of “admission”) unknown elsewhere in immigration law. Accordingly, we limit the effect of our holding and our discussion of rescission and termination of status to those admissions arising under the provisions for adjustment to lawful temporary resident status authorized by 8 U.S.C. § 1255a(a) and implemented at 8 C.F.R. § 245a.2.

The full court has been advised of the Petition for Rehearing En Banc, and no judge of the court has requested a vote on it.

The Petition for Rehearing En Banc, filed on May 5, 2014, is DENIED. No additional petitions for rehearing will be entertained.

OPINION

Jose Luis Hernandez–Arias appeals the denial of his motion to dismiss the indictment charging him with attempted reentry after a prior removal in violation of 8 U.S.C. § 1326. He argues that the conviction was predicated on a removal order that was obtained in violation of his due process rights. Hernandez–Arias's challenge centers on whether a non-citizen can be removed as an alien found in the United States without having been “admitted or paroled” where the alien adjusted to temporary resident status, but that status was later terminated. We conclude that termination of Hernandez–Arias's temporary status operated to revoke any “admission” resulting from the prior adjustment of status, rendering Hernandez–Arias unadmitted and removable.

I. Factual Background

Hernandez–Arias is a native and citizen of Mexico who entered the United States without inspection in 1981. He is the father of two United States citizen children. He has worked in an auto body shop and as a car salesman.

Hernandez–Arias was granted temporary resident status in 1988 following his application for amnesty pursuant to 8 U.S.C. § 1255a(a). This status was revoked in 1991 on account of his 1989 conviction of five counts of lewd and lascivious acts on a child under the age of 14 in violation of California Penal Code § 288(a)-(b). Hernandez–Arias was sentenced to six years in prison for each count, to be served concurrently.

Hernandez–Arias was paroled from prison in 1992. After a lengthy interlude, Hernandez–Arias again came to the attention of immigration authorities in October, 2010, after he was convicted of misdemeanor grand theft and sentenced to 120 days in jail. Hernandez–Arias was subsequently served with a Notice to Appear (NTA) charging removability for being “an alien present in the United States who has not been admitted or paroled,” in violation of § 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA).

Hernandez–Arias appeared pro se at a group removal hearing held on November 18, 2010. The immigration judge (IJ) informed the group of their “right to be represented by an attorney, but at no expense to the government.” The IJ confirmed that each individual had received a list of immigration attorneys from the area and understood their responsibility to contact such attorneys should they desire further assistance. The group collectively waived the right to counsel. The IJ also informed the group of potential eligibility for certain forms of relief from deportation, including asylum, Convention Against Torture (CAT) protection, cancellation of removal, adjustment of status, and voluntary departure. He did not specifically mention the potential for relief under § 212(h) of the INA (waiver of inadmissibility).

During the individual component of the hearing, the IJ found Hernandez–Arias deportable as charged based on his illegal entry in 1982 ¹. The IJ then sought to ascertain Hernandez–Arias's potential eligibility for relief. Hernandez–Arias stated that his wife had filed an application for adjustment of status on his behalf in 2001, but that they “never received anything from that.” He noted that he had been convicted of child molestation in 1988 and had two U.S. citizen children.

The IJ advised Hernandez–Arias of his uncertainty regarding whether Hernandez–Arias “would be eligible for a waiver or not,” but that he might be able to apply for a “green card” if his wife had applied for adjustment before “April 30 of 2001.” The IJ also noted that Hernandez–Arias might qualify for cancellation of removal, but that such relief was doubtful given his criminal history. In any case, the IJ explained that Hernandez–Arias bore the burden of proving eligibility for relief. When asked whether he wished to take some time to prepare his case, Hernandez–Arias declined and said that he did not wish to pursue any relief. The IJ accordingly ordered Hernandez–Arias removed to Mexico. Hernandez–Arias accepted the decision and waived his right to appeal. He was deported on November 20, 2010.

Not even three weeks later, on December 9, 2010, Hernandez–Arias applied for entry into the United States at the San Ysidro Port of Entry using a fraudulent passport and visa. Post-arrest, Hernandez–Arias admitted to immigration agents that he had previously been deported and lacked lawful status.

The government filed a three-count indictment against Hernandez–Arias, charging: (1) attempted reentry after a prior deportation in violation of 8 U.S.C. § 1326, (2) fraud and misuse of reentry documents in violation of 18 U.S.C. § 1546(a), and (3) aggravated identity theft in violation of 18 U.S.C. § 1028A. Hernandez–Arias moved to dismiss the § 1326 charge for alleged defects in his underlying removal. He argued that he was not removable as charged because he had been “admitted” within the meaning of the immigration statutes when he was granted temporary resident status. Hernandez–Arias also contended that his removal hearing was fundamentally unfair because the IJ had not advised him of his potential eligibility for § 212(h) relief. The government opposed the motion, arguing that Hernandez–Arias's removal comported with due process and that Hernandez–Arias had failed to exhaust available administrative remedies.

The district court denied Hernandez–Arias's motion to dismiss. It concluded that Hernandez–Arias was properly removed under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien who had not been admitted, because adjustment to temporary resident status was not an “admission” within the meaning of the immigration provisions. Alternatively, the court held that even if Hernandez–Arias had been admitted as a temporary resident, the termination of his temporary residency operated to return him to his prior unadmitted status pursuant to 8 C.F.R. § 245a.2(u)(4). The court further held that Hernandez–Arias was not prejudiced by the IJ's failure to advise him of the availability of prospective relief under § 212(h) because Hernandez–Arias was statutorily ineligible for that relief. As Hernandez–Arias failed to demonstrate a due process violation resulting in prejudice, the court declined to reach the issue of administrative exhaustion.

A jury convicted Hernandez–Arias of illegal reentry and fraudulent use of reentry documents, but acquitted him of the aggravated identity theft charge. The district court imposed a within-Guidelines sentence of 41 months' imprisonment. The court noted that the Guidelines range for the fine was $7,500 to $75,000 for each count, but recognized that Hernandez–Arias did not have “the ability to pay that kind of fine.” Accordingly, the judge ordered payment of a $1,000 fine in installments. The fine amount and payment plan mirrored the recommendation in the Presentence Report, which provided no details regarding Hernandez–Arias's ability to pay. Hernandez–Arias objected to the procedural and substantive reasonableness of his sentence, without specifically mentioning his fine. Judgment was entered, and Hernandez–Arias filed a timely notice of appeal.

II. Standard of Review

We review de novo “the district court's denial of a motion to dismiss an indictment under 8 U.S.C. § 1326 when the motion is based on an alleged deprivation of due process in the underlying removal proceedings....” United States v. Valdavinos–Torres, 704 F.3d 679, 685 (9th Cir.2012) (citation omitted). When a party does not assert a specific objection in the district court, as is the case with respect to the imposition of the fine here, we review for plain error. See United States v. Santiago, 466 F.3d 801, 803 (9th Cir.2006). “A district court's finding of whether a defendant is able to pay [a] fine is reviewed for clear...