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United States v. Hernandez-Arias

United States Court of Appeals, Ninth Circuit

March 21, 2014


Argued and Submitted July 8, 2013, Pasadena, California

As Corrected April 16, 2014.

Page 1276

Appeal from the United States District Court for the Southern District of California. D.C. No. 3:11-cr-00368-BEN-1. Roger T. Benitez, District Judge, Presiding.

Harini P. Raghupathi, Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.

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

Before: Susan P. Graber, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges. Opinion by Judge Rawlinson; Concurrence by Judge Watford.


Page 1277

RAWLINSON, Circuit Judge:

Jose Luis Hernandez-Arias appeals the denial of his motion to dismiss the indictment charging him with attempted reentry

Page 1278

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 This status was revoked in 1991 on account of his 1989 conviction of five counts of lewd and lascivious acts on a child under the age of 14 in violation of California Penal Code §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

Page 1279

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 ...

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