United States v. Hernandez-Arias, No. 12-50193 (9th Cir. 2014)
Annotate this CaseDefendant, a native and citizen of Mexico, appealed 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. The court concluded that defendant's removal as an alien "not admitted or paroled" as alleged in the Notice to Appear was not "fundamentally unfair" where the termination of his temporary resident status returned him to the status of an inadmissible alien subject to removal; defendant was foreclosed from demonstrating prejudice because INA 212(h) did not provide relief for aliens removed for illegal presence in the United States without admission or parole in violation of 8 U.S.C. 1182(a)(6)(A)(i), the sole basis of defendant's removal; and defendant did not preserve his claim that the IJ failed to advise him of his right to counsel and/or obtain a valid waiver of the right to counsel. Finally, the district court's imposition of a below-Guidelines fine was not procedurally erroneous. Accordingly, the court affirmed the judgment of the district court.
Court Description: Criminal/Immigration. The panel affirmed a criminal judgment in a case in which the defendant contended that his conviction for attempted reentry after a prior removal was predicated on a removal order that was obtained in violation of his due process rights. The defendant’s challenge centered on whether a non- citizen can be removed as an alien found in the United States without having been “admitted or paroled” under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, where the alien adjusted to temporary resident status, but that status was later terminated. The panel held that termination of the defendant’s temporary status operated to revoke any “admission” resulting from the prior adjustment of status, rendering the defendant unadmitted and removable. Because the defendant’s removal order was not fundamentally unfair, the panel affirmed the district court’s denial of his motion to dismiss the indictment. The panel deemed waived on appeal the defendant’s claim that the immigration judge failed to advise him of his right to counsel and/or obtain a valid waiver of the right to counsel. The panel concluded that the fine imposed was reasonable. Concurring, Judge Watford wrote that the panel need not say anything beyond that 8 C.F.R. § 245a.2(u)(4) states that termination of lawful temporary residence “shall act to return such alien to the unlawful status held prior to the adjustment,” which in the defendant’s case was that of an alien “present in the United States without being admitted or paroled.”
The court issued a subsequent related opinion or order on August 5, 2014.
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