United States v. Hernandez-Arias, No. 12-50193 (Rawlinson with Graber and Watford) ---
The Ninth Circuit held that (1) termination of temporary resident status operates to change an alien's status from "admitted" to "not admitted," for purposes of the ground of removability that applies to aliens not admitted or paroled into the United States; and (2) that as a result this illegal-reentry defendant's collateral attack on the deportation order should fail.
The defendant, a Mexican citizen, entered the United States in 1981 without inspection (and thus was not "admitted" to the United States at that time). As part of the blanket amnesty for undocumented immigrants in the mid-1980s, he was granted temporary resident status in 1988. But in the wake of his conviction for child molestation, this status was revoked in 1991. He was paroled from prison in 1992. He next came to the attention of immigration authorities in 2010 following a conviction for misdemeanor grand theft (which sounds like an oxymoron), when the government charged him with being illegally present in the United States as an alien not "admitted or paroled" into the United States, based on the 1981 entry. He was part of a group removal hearing in front of an immigration judge, who advised him about various forms of relief not including a waiver of inadmissibility under § 212(h) of the Immigration and Nationality Act. The IJ also advised the defendant about his right to hire a lawyer to represent him at the hearing. The defendant declined to hire a lawyer or pursue relief from removal or an appeal from the removal order, and so the IJ ordered him removed.
Three weeks after he was removed, the defendant presented himself at a port of entry and attempted to enter the United States using a fraudulent passport. He was charged with attempted illegal reentry, fraudulent use of entry documents, and aggravated identity theft. The trial judge rejected his collateral attack on the removal order based on the IJ's failure to advise him of eligibility for § 212(h) relief, concluding that he was not eligible for that kind of relief and in any event he had failed to exhaust his administrative remedies. A jury in the Southern District of California convicted him of the first two counts and acquitted him of the identity-theft count. The trial judge imposed a 41-month sentence and a $1,000 fine, payable in installments.
Resolving the issues about the collateral attack on the removal order boiled down to whether the hearing was fundamentally fair and whether the defendant was prejudiced as a result of defects in the proceeding. The Ninth Circuit held that the defendant was removable based on the fact that he had not been "admitted" into the United States at the time of his removal hearing in 2010. "Admission" includes not only formal inspection at a port of entry, but also those aliens whose status is adjusted subsequent to physical entry. So the defendant was probably "admitted" in 1988 when he was granted temporary resident status. But did he cease to be "admitted" when he lost that status in 1991? Under INS regulations, the answer to that question was yes, because termination of that status had the effect of returning the defendant to the prior unlawful status that he held before he became a temporary resident. 8 C.F.R. § 245a.2(u)(4). (For contrast, legal permanent residents continue to be "admitted" even after they lose their LPR status. See Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001).) And the regulation did not illegally effect a rescission of status; the regulation amounted to an immigration "divorce" instead of an immigration "annulment."
Furthermore, the defendant wasn't eligible for a § 212(h) waiver, because those waivers aren't available to people like the defendant who are removable as inadmissible. See United States v. Ramos, 623 F.3d 672 (9th Cir. 2010). And the court did not consider the defendant's contention that the removal proceedings were fundamentally unfair because the IJ didn't properly advise him of his right to counsel, because the defendant did not ask the trial judge to dismiss the indictment on that ground. (What about plain error?)
Finally, the amount of the fine was reasonable because the PSR recommended it and the defendant did not object at sentencing.
The opinion is here: