United States v. Joe Hernandez-Arias
2014 U.S. App. LEXIS 5362
| 9th Cir. | 2014Background
- Hernandez-Arias, a Mexican national, entered the U.S. without inspection in 1981 and later obtained temporary resident status under IRCA § 1255a(a) in 1988, which was revoked in 1991 due to a 1989 child-molestation conviction.
- He was paroled from prison in 1992, and in 2010 he faced removal proceedings after a 2010 misdemeanor/grand theft conviction.
- At a group removal hearing, Hernandez-Arias waived counsel; the IJ indicated possible relief but did not expressly discuss § 212(h).
- The IJ found him de-portable as charged and ultimately ordered removal to Mexico; Hernandez-Arias chose to not pursue relief.
- Weeks after deportation, he reentered at the San Ysidro Port of Entry using fraudulent documents; the government charged him with attempted reentry (count § 1326) along with fraud and identity-theft-related counts.
- The district court denied the motion to dismiss the § 1326 charge, and a jury convicted on the § 1326 and § 1546(a) counts but acquitted on § 1028A; sentence imposed was a $1,000 fine and 41 months’ imprisonment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination of temporary residency revoked any admission | Hernandez-Arias argues he was admitted via temporary status | Government contends termination returns him to unlawful, unadmitted status | Termination revoked admission; removal valid |
| Whether Hernandez-Arias was eligible for § 212(h) relief and prejudice existed | INA § 212(h) relief could have applied; prejudice shown | No plausible relief exists since removal was for illegal presence without admission | § 212(h) relief not plausible; no prejudice shown |
| Whether failure to advise of § 212(h) relief at removal proceedings caused fundamental unfairness | IJ failed to advise of potential relief | No prejudice since § 212(h) ineligibility; issue waived or not preserved | Claim waived/prejudice not shown; no fundamental unfairness |
| Whether failure to advise of right to counsel was a due process issue | IJ did not individually advise of right to counsel | Not raised below; issue waived on appeal | Waived on appeal; not considered on the merits |
| Whether the district court’s $1,000 fine was reasonable | Fine inadequately explained given Guidelines | Record supported amount; presentence report favored fine; explanation adequate | Fine was reasonable; plain error not shown |
Key Cases Cited
- Vidal-Mendoza v. United States, 705 F.3d 1012 (9th Cir. 2013) (collateral attack standard; exhaustion and fundamental unfairness)
- Ubaldo-Figueroa v. United States, 364 F.3d 1042 (9th Cir. 2004) (due process exhaustion exception)
- Reyes-Bonilla v. United States, 671 F.3d 1036 (9th Cir. 2012) (fundamental unfairness; prejudice required)
- Ramos v. United States, 623 F.3d 672 (9th Cir. 2010) (§ 212(h) relief not available for this removal)
- Arce-Hernandez v. United States, 163 F.3d 559 (9th Cir. 1999) (requirement to advise of eligibility for relief; prejudice standard)
- Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001) (adjustment of status treated as admission for purpose of immigration)
- Hing Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010) (definition of admission under INA)