United States v. Joe Hernandez-Arias

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50193
Plaintiff-Appellee,
D.C. No.
v. 3:11-cr-00368-BEN-1
JOSE LUIS HERNANDEZ-ARIAS,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted
July 8, 2013—Pasadena, California
Filed March 21, 2014
Before: Susan P. Graber, Johnnie B. Rawlinson,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Rawlinson;
Concurrence by Judge Watford
2 UNITED STATES V. HERNANDEZ-ARIAS
SUMMARY*
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.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. HERNANDEZ-ARIAS 3
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.”
COUNSEL
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.
OPINION
RAWLINSON, Circuit Judge:
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
4 UNITED STATES V. HERNANDEZ-ARIAS
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 on 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
UNITED STATES V. HERNANDEZ-ARIAS 5
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 19821. 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
1
It appears that the court intended to refer to 1981 rather than 1982.
That discrepancy is not an issue on appeal.
6 UNITED STATES V. HERNANDEZ-ARIAS
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
UNITED STATES V. HERNANDEZ-ARIAS 7
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
8 UNITED STATES V. HERNANDEZ-ARIAS
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 error. . . .” United States v.
Orlando, 553 F.3d 1235, 1240 (9th Cir. 2009).
III. Analysis
A. Collateral Challenge to Removal Order
An alien who “has been denied admission, excluded,
deported, or removed” commits a crime if the alien “enters,
attempts to enter, or is at any time found in, the United
States.” 8 U.S.C. § 1326(a). One method of violating
§ 1326 is returning to the United States after entry of a prior
removal order. See id. § 1326(a)(1); see also United States v.
Vidal-Mendoza, 705 F.3d 1012, 1014–15 (9th Cir. 2013).
“Congress has strictly limited an alien’s ability to bring a
collateral challenge to such an order. . . .” Vidal-Mendoza,
705 F.3d at 1014–15 (citation omitted). An alien facing
criminal charges may initiate a collateral attack on the
underlying order only if “(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 of the
order was fundamentally unfair.” 8 U.S.C. § 1326(d).
If the alien establishes a due process violation that
prevented his waiver of appeal from being knowing and
UNITED STATES V. HERNANDEZ-ARIAS 9
intelligent, he is excused from the exhaustion requirement.
See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048
(9th Cir. 2004). Therefore, the crucial question in this case is
whether Hernandez-Arias has demonstrated a due process
violation and fundamental unfairness. Fundamental
unfairness “for purposes of § 1326(d)(3) [is demonstrated]
when the deportation proceeding violated the alien’s due
process rights and the alien suffered prejudice as a result.”
United States v. Reyes-Bonilla, 671 F.3d 1036, 1043 (9th
Cir.), cert. denied, 133 S. Ct. 322 (2012) (citation omitted).
Hernandez-Arias alleges three distinct due process violations
in his removal proceeding: (1) that he was not removable as
charged because he was “admitted” within the meaning of
immigration law when he was granted temporary resident
status; (2) that he was not informed of his potential eligibility
for a § 212(h) waiver; and (3) that he was not adequately
advised of his right to counsel. He contends that he suffered
prejudice from these violations because he was removed
when he should not have been or, alternatively, was removed
despite the availability of viable avenues for relief. None of
Hernandez-Arias’s arguments is persuasive.
1) Hernandez-Arias was removable as charged.
The government alleged in the NTA that Hernandez-Arias
was removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) for
being “[a]n alien present in the United States without being
admitted or paroled . . .” Hernandez-Arias was granted
temporary resident status in 1988 pursuant to the amnesty
provisions of the Immigration Reform and Control Act of
1986 (IRCA) (codified at 8 U.S.C. § 1255a).2 IRCA created
2
References to 8 U.S.C. § 1255A will be cited as § 1255a to be
consistent with citations in online reference sources.
10 UNITED STATES V. HERNANDEZ-ARIAS
a one-year window between 1987 and 1988 in which aliens
who unlawfully entered the United States before January 1,
1982, could obtain Lawful Permanent Resident (LPR) status.
See 8 U.S.C. § 1255a(a)–(b). A two-step process was
involved. First, an alien was required to apply for temporary
residence. See id. § 1255a(a). Next, the temporary resident
had to file an application for adjustment to LPR status within
forty-three months after adjustment of status to that of a
temporary resident. See id. § 1255a(b). Hernandez-Arias
completed the first step, but not the second.
The INA defines “admission” and “admitted” as “the
lawful entry of the alien into the United States after
inspection and authorization by an immigration officer.” Id.
§ 1101(a)(13)(A). This definition applies across the INA.
See id. § 1101(a) (defining terms “[a]s used in this chapter”).
“[T]he plain meaning of the term ‘admission’ in
§ 1101(a)(13)(A) . . . refers to a procedurally regular
admission and not a substantively lawful admission.” Hing
Sum v. Holder, 602 F.3d 1092, 1096 (9th Cir. 2010) (footnote
reference omitted). Thus, an alien is “admitted” pursuant to
§ 1101(a)(13)(A) when he undergoes the process of
“inspection and authorization by an immigration officer at the
port of entry”, id. at 1101, regardless of whether the alien
initially entered lawfully. See id. at 1099.
Because Hernandez-Arias was never inspected at the
border, he was not “admitted” as that term is defined in
§ 1101(a)(13)(A). However, “both this court and the BIA, in
precedential decisions, have not limited the scope of
‘admitted’ to [§ 1101(a)(13)(A)’s] strict definition.” Garcia-
Quintero v. Gonzales, 455 F.3d 1006, 1015 (9th Cir. 2006).
Certain events, such as adjustment to LPR status or
acceptance into the Family Unity Program (FUP), qualify as
UNITED STATES V. HERNANDEZ-ARIAS 11
“admission” for immigration purposes. See id. at 1018–19
(recognizing alien as “admitted in any status” upon
acceptance into the FUP); see also Ocampo-Duran v.
Ashcroft, 254 F.3d 1133, 1134–35 (9th Cir. 2001) (classifying
alien who entered without inspection as admitted upon
adjustment to LPR status). The BIA considers “[a]djustment
of status [as] essentially a proxy for inspection and
permission to enter at the border, which is given as a matter
of administrative grace. . . .[The BIA has] consistently
construed an adjustment of status as an ‘admission. . . .’” In
re Koljenovic, 25 I & N Dec. 219, 221 (BIA 2010).
According to the BIA, “adjustment applicants are to be
treated as if they are being ‘admitted.’. . .” Id.; see also In re
Alyazji, 25 I & N Dec. 397, 404 (BIA 2011) (declining the
invitation from the Department of Homeland Security to
redefine the term “‘admission’ on a case-by-case basis” and
concluding that “adjustment of status constitutes an
admission”).
It could be persuasively argued that admission to
temporary residency qualifies as an “admission.” The
relevant statutory text includes the word “admission,”
providing that “[t]he Attorney General shall adjust the status
of an alien to that of an alien lawfully admitted for temporary
residence [if the applicant fulfills certain requirements].”
8 U.S.C. § 1255a(a) (emphasis added). And, as with lawful
admission for permanent residence, lawful admission for
temporary residence involves the statutory fiction of an
administrative “inspection” by immigration officials coupled
with legal permission to remain in the United States. See
Koljenovic, 25 I & N Dec. at 221. Our logic in Ocampo-
Duran also suggests that the grant of lawful temporary
resident status should constitute an admission. See Ocampo-
Duran, 254 F.3d at 1135 (equating the privilege of lawfully
12 UNITED STATES V. HERNANDEZ-ARIAS
residing in the country with an admission); see also Lawrence
v. Holder, 717 F.3d 1036, 1040 (9th Cir. 2013) (deferring to
the Attorney General’s interpretation of INA § 212(c)
defining “admissions” as encompassing applications for
§ 212(c) relief). Without deciding the issue, we assume that
adjustment to temporary resident status pursuant to
§ 1255a(a) is an “admission” under the immigration laws.
We need not definitively resolve whether Hernandez-
Arias’s adjustment to temporary resident status constituted an
admission because, even if it did, termination of that status
operated to revoke any prior admission. Hernandez-Arias’s
1989 convictions rendered him statutorily ineligible for
further participation in the amnesty program, and his
temporary resident status was terminated by the Immigration
and Naturalization Service. See 8 C.F.R. §§ 245a.2(c), (k)(3),
& (u)(1). Pursuant to 8 C.F.R. § 245a.2(u)(4), “[t]ermination
of the status of any alien previously adjusted to lawful
temporary residence under section 245a(a) of the Act shall act
to return such alien to the unlawful status held prior to the
adjustment, and render him or her amenable to exclusion or
deportation proceedings under section 236 or 242 of the Act,
as appropriate.” Once Hernandez-Arias’s temporary resident
status was terminated, by operation of the governing
regulation, he automatically reverted to his prior unlawful,
unadmitted status.
Hernandez-Arias’s contention that he retained the benefits
of his adjustment to temporary residence despite termination
of that status lacks textual support in the applicable
regulation. Were his “admission” to remain in effect despite
termination of his status, Hernandez-Arias would not in fact
“return . . . to the unlawful status held prior to the
adjustment.” 8 C.F.R § 245a.2(u)(4) (emphasis added). The
UNITED STATES V. HERNANDEZ-ARIAS 13
regulation also specifies that termination of status rendered
Hernandez-Arias subject to removal under sections 236
(exclusion) or 242 (deportation) of the INA. See id.
Fairly read, 8 C.F.R. § 245a.2 describes a limited form of
status with no lasting immigration benefit. The regulation
specifically provides that “[a]n alien whose status is adjusted
to that of a lawful temporary resident under section 245a[3] of
the Act is not entitled to . . . any . . . benefit or consideration
accorded under the Act to aliens lawfully admitted for
permanent residence.” 8 C.F.R. § 245a.2(v). To the extent
that “admission” is a lasting immigration benefit conferred
upon LPRs, see Ocampo Duran, 254 F.3d at 1134–35, similar
treatment of temporary residents is foreclosed under the
governing regulation.
Hernandez-Arias contends that terminating his admission
would effect a “rescission of status” in violation of 8 C.F.R.
§ 245a.2(u)(3), which provides that “the phrase termination
of status of an alien granted lawful temporary residence under
section 245a(a) of the Act shall not be construed to
necessitate a rescission of status as described in section 246
of the Act,[4] and the proceedings required by the regulations
issued thereunder shall not apply.” However, we do not view
termination in this context to be analogous to rescission. The
difference between rescission and termination is one of
timing, similar to the difference between annulment and
3
References to section 245a of the Act are to the statutory provisions
codified at 8 U.S.C. § 1255a. See 8 C.F.R. § 245a.2 (Headings).
4
References to section 246 of the Act are to the statutory provisions
codified at 8 U.S.C. § 1256. See 8 U.S.C. § 1256 (discussing rescission
of adjustment of status).
14 UNITED STATES V. HERNANDEZ-ARIAS
divorce. The legal effect of an annulment is to return the
parties to the status of individuals who were never married to
each other. See Purganan v. Schweiker, 665 F.2d 269, 270
(9th Cir. 1982) (noting that generally annulment relates back
and “erase[s] the marriage and all its implications from the
outset”). A consequence of annulment is that none of the
benefits accumulated during the marriage is retained. See id.
In contrast, a divorce severs the marital union as of the date
the divorce becomes final. See Steve Escalera, California
Marital Annulments, 11 J. CONTEMP. LEGAL ISSUES 153,
153–54 (1997) (“Whereas a divorce judgment dissolves an
existing marriage—according full legal recognition to the
marriage relationship between the date of its formation and
the date of termination of the marital status—an annulment
judgment is said to ‘relate back’ and erase the marriage and
all its implications from the outset.”). Any benefits accrued
during the duration of the marriage continue to exist after
divorce. See, e.g., Cal. Fam. Code § 760 (noting that property
acquired during the marriage is thereafter considered
community property).
Termination of Hernandez-Arias’s temporary resident
status is more akin to a divorce than to an annulment. The
government is not seeking to deprive Hernandez-Arias of any
benefits he may have accrued while residing in the United
States. For example, if Hernandez-Arias were eligible for
cancellation of removal, he would be entitled to count all the
time he was present as a temporary resident toward the
physical presence requirement. See 8 U.S.C. § 1229b
(discussing the physical presence requirement for
inadmissible or deportable aliens). That would not be true if
Hernandez-Arias’s status had been rescinded. See Kim v.
Meese, 810 F.2d 1494, 1497 (9th Cir. 1987) (noting that
rescission of status is appropriate when the alien was never
UNITED STATES V. HERNANDEZ-ARIAS 15
eligible for the adjustment granted); see also 8 C.F.R. § 246.1
(describing rescission procedure). Indeed, it is telling that the
immigration authorities have never contended that
Hernandez-Arias was ineligible for adjustment of status to
that of a temporary resident.
We need not and do not defer to the BIA’s unpublished,
one-judge decision in In re Castro-Valdez, 2012 WL 391158
(BIA 2012), finding “admitted” an alien whose adjustment of
status had been terminated. A one-member, non-precedential
order like this one is not entitled to deference under Auer v.
Robbins, 519 U.S. 452 (1997), as an interpretation of an
agency regulation, because it does not reflect the BIA’s
considered judgment on the question. Go v. Holder, No. 11-
73272, __F.3d__ n.1 (9th Cir. 2014) (citing Lezama-Garcia
v. Holder, 666 F.3d 518, 532 (9th Cir. 2011)). In re Castro-
Valdez did not rely on any supporting authority in its analysis
and its cursory review of the regulation lacks persuasive
power.
For the reasons discussed, we conclude that Hernandez-
Arias’s removal as an alien “not admitted or paroled” as
alleged in the NTA was not “fundamentally unfair.” The
termination of his temporary resident status returned him to
the status of an inadmissible alien subject to removal.
2) Hernandez-Arias was not eligible for a § 212(h)
waiver.5
When the record supports an inference that an alien in
removal proceedings is eligible for relief from removal, the
IJ must advise the alien of his eligibility for the potential
5
References to § 212(h) are to 8 U.S.C. § 1182(h).
16 UNITED STATES V. HERNANDEZ-ARIAS
relief. See United States v. Arce-Hernandez, 163 F.3d 559,
563 (9th Cir. 1999), as amended. However, to establish
fundamental unfairness for failure to advise of potential
eligibility for relief, an alien must show prejudice in the form
of “plausible grounds for relief from deportation. . . .” Id.
Hernandez-Arias is foreclosed from demonstrating
prejudice because “INA § 212(h) does 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 Hernandez-Arias’s
removal. United States v. Ramos, 623 F.3d 672, 684 (9th Cir.
2010). For a § 212(h) waiver to be plausible, we would have
to conclude that Hernandez-Arias was not removable as
charged. See id. Because we have concluded that
termination of Hernandez-Arias’s temporary status returned
him to the status of an inadmissible alien, Hernandez-Arias
cannot demonstrate prejudice in the form of a plausible
ground for available relief. See Arce-Hernandez, 163 F.3d at
563.
3) Hernandez-Arias 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.
For the first time on appeal, Hernandez-Arias argues that
his removal was fundamentally unfair because the IJ did not
individually advise him of his right to counsel or obtain a
valid waiver of the right to counsel.
“[A]n issue will generally be deemed waived on appeal if
the argument was not raised sufficiently for the trial court to
rule on it. . . .” Ruiz v. Affinity Logistics Corp., 667 F.3d
1318, 1322 (9th Cir. 2012) (citation omitted). In the district
UNITED STATES V. HERNANDEZ-ARIAS 17
court proceedings Hernandez-Arias sought dismissal of the
indictment solely on the ground that his temporary admission
precluded his removal. He never raised any challenge
predicated on the IJ’s alleged failure to properly advise him
of his right to counsel. We therefore consider this issue
waived on appeal.
4) Conclusion.
Because we conclude that Hernandez-Arias has not
demonstrated any due process violation resulting in prejudice,
his order of removal was not “fundamentally unfair.” Reyes-
Bonilla, 671 F.3d at 1043. Failure to prove “fundamental
unfairness” precludes a successful collateral attack on the
underlying removal order pursuant to § 1326(d). Id.; see also
United States v. Calderon-Segura, 512 F.3d 1104, 1108 (9th
Cir. 2008) (holding that the district court properly denied a
motion to dismiss an indictment because the prior removal
was not “fundamentally unfair” under § 1326(d)(3)). We
affirm the district court’s denial of Hernandez-Arias’s motion
to dismiss the indictment.
B. Reasonableness of the Fine
Hernandez-Arias argues that the district court’s
imposition of a below-Guidelines fine of $1,000 was
procedurally erroneous due to an inadequate explanation.
Hernandez-Arias did not raise this specific objection before
the district court, and the record does not reflect an
understanding by the district court that his general objection
to his sentence covered the fine, see United States v. Grissom,
525 F.3d 691, 695 (9th Cir. 2008), so we review for plain
error. See Santiago, 466 F.3d at 803. But even if the error
were preserved and we were to review for reasonableness, see
18 UNITED STATES V. HERNANDEZ-ARIAS
Orlando, 553 F.3d at 1240, we would reach the same
conclusion.
Under the Guidelines, a district court must impose a fine
“in all cases, except where the defendant establishes that he
is unable to pay and is not likely to become able to pay any
fine.” U.S.S.G. § 5E1.2(a). “The district court must consult
the Guidelines’ recommendation, the § 3553(a) factors, and
the 18 U.S.C. § 3572(a) factors to determine the
appropriateness of the imposition of a fine and its
amount. . . .” Orlando, 553 F.3d at 1239 (citation omitted).
Although a district court must “explain the sentence”
sufficiently to permit meaningful review, an “[a]dequate
explanation not only derives from the judge’s pronouncement
of the sentence, but may also be inferred from the
[presentence report] or the record as a whole.” United States
v. Blinkinsop, 606 F.3d 1110, 1114 (9th Cir. 2010) (citation,
alteration, and internal quotation marks omitted).
The district court noted at the sentencing hearing that the
Guidelines range for the fine was between $7,500 and
$75,000 for each count, but that Hernandez-Arias did not
have “the ability to pay that kind of fine.” Accordingly, the
judge imposed a $1,000 fine. Although the judge did not
explain at length his fine calculation, the amount imposed
mirrored the recommendation in the presentence report and
Hernandez-Arias voiced no objection. “At sentencing, the
court . . . may accept any undisputed portion of the
presentence report as a finding of fact[.]” Fed. R. Crim. P.
32(i)(3)(A). Evidence in the record of Hernandez-Arias’s
skill as an auto mechanic and car salesman supported an
inference that he had the ability to pay the fine amount.
Given the lack of a showing of inability to pay the amount,
the imposition of a $1,000 fine was reasonably supported by
UNITED STATES V. HERNANDEZ-ARIAS 19
facts in the record. No further explanation was required. See
Orlando, 553 F.3d at 1240 (upholding the imposition of a fine
without requiring extensive explanation).
IV. Summary
The district court properly denied Hernandez-Arias’s
motion to dismiss the indictment charging him with
attempted reentry after a prior removal in violation of
8 U.S.C. § 1326. The removal order under which Hernandez-
Arias was deported was obtained in a manner that was
consistent with Hernandez-Arias’s due process rights.
Hernandez-Arias was removable as an alien present in the
country without admission. Once Hernandez-Arias’s
temporary status was terminated, his status reverted to that of
an unadmitted alien subject to removal. The fine imposed by
the district court was reasonable.
AFFIRMED.
WATFORD, Circuit Judge, concurring:
I agree that Hernandez-Arias was properly removed in
2010 as “[a]n alien present in the United States without being
admitted or paroled.” 8 U.S.C. § 1182(a)(6)(A)(i). The
statutory phrase “present in the United States without being
admitted or paroled” describes a status, one that Hernandez-
Arias held after entering the country without inspection.
Even if Hernandez-Arias lost that status when he obtained
lawful temporary residence, he regained that status when his
lawful temporary residence was terminated. If there were any
doubt on that score, the governing regulation resolves it. The
20 UNITED STATES V. HERNANDEZ-ARIAS
regulation states that termination of lawful temporary
residence “shall act to return such alien to the unlawful status
held prior to the adjustment,” 8 C.F.R. § 245a.2(u)(4), which
in Hernandez-Arias’ case was that of an alien “present in the
United States without being admitted or paroled.” I don’t
think we need to say anything beyond that to resolve this
issue.
I join the court’s opinion with respect to all other issues.