United States v. Joaquin Hernandez-Navarro , 576 F. App'x 673 ( 2014 )

FILED
NOT FOR PUBLICATION MAY 29 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50285
Plaintiff - Appellee, D.C. No. 3:11-cr-03382-H-1
v.
MEMORANDUM*
JOAQUIN HERNANDEZ-NAVARRO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted May 15, 2014
Pasadena, California
Before: PREGERSON, REINHARDT, and NGUYEN, Circuit Judges.
Defendant Joaquin Hernandez-Navarro (“Hernandez”) appeals from his
conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326(a)
and (b), by challenging the validity of his underlying deportation.1 We review the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
Hernandez does not appeal his conviction for false claim to United States
citizenship, in violation of 18 U.S.C. § 911.
district court’s denial of a motion to dismiss de novo, United States v. Ramos, 623
F.3d 672, 680 (9th Cir. 2010), and we affirm.
1. “[A]n alien cannot collaterally attack an underlying deportation order if he
validly waived the right to appeal that order.” Id. (quoting United States v.
Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000)). A waiver of the right to appeal is
valid if it is “considered and intelligent.” Id. The Immigration Judge (“IJ”) first
advised Hernandez of his right to appeal in a group setting, and then asked him
individually, after his hearing, if he wished to appeal. Hernandez declined to
appeal. This procedure does not in itself violate the right to due process. United
States v. Estrada-Torres, 179 F.3d 776, 781 (9th Cir. 1999), overruled on other
grounds by United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001).
Moreover, the isolated moments during the hearing when Hernandez did not
understand a question or did not know an answer reflect neither a lack of
understanding of the removal proceedings in general nor a specific lack of
understanding of the right to appeal. Hernandez’s waiver of his right to appeal was
therefore valid.
2. An alien in removal proceedings has the right to counsel under the Fifth
Amendment. Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004).
“Although IJs may not be required to undertake Herculean efforts to afford the
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right to counsel, at a minimum they must (1) inquire whether the petitioner wishes
counsel, (2) determine a reasonable period for obtaining counsel, and (3) assess
whether any waiver of counsel is knowing and voluntary.” Ramos, 623 F.3d at 682
(internal quotation marks omitted) (quoting Ram v. Mukasey, 529 F.3d 1238, 1241
(9th Cir. 2008)). Here, Hernandez was advised, in a group, of his right to counsel,
provided with a list of free counsel, and informed that if he wished to retain
counsel he did not need to proceed with his immigration case that day. The IJ then
asked him individually if he wished to represent himself and proceed with the
hearing that day, and he said that he did. Hernandez offers no legal basis for his
assertion that the IJ’s advisal of the right to counsel was invalid because the IJ did
not sufficiently explain the potential consequences of self-representation.
3. Because Hernandez validly waived his right to appeal and has not
demonstrated a due process violation in his removal proceedings, his collateral
challenge to his underlying removal order fails. United States v. Ubaldo-Figueroa,
364 F.3d 1042, 1048 (9th Cir. 2004); 8 U.S.C. § 1326(d). We affirm the
conviction for attempted entry after deportation.
AFFIRMED.
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