United States v. Joe Hernandez-Arias, 2014 U.S. App. LEXIS 15387

Background

Hernandez-Arias, a Mexican national who originally entered the U.S. without inspection, obtained lawful temporary resident status under IRCA in 1988 but did not complete adjustment to LPR.
His temporary resident status was terminated after a 1989 child-molestation conviction, by operation of 8 C.F.R. § 245a.2(u).
In 2010 an IJ ordered him removed as an alien present in the U.S. without being admitted or paroled; Hernandez-Arias waived appeal and was removed.
Shortly after removal he attempted reentry using fraudulent documents and was indicted under 8 U.S.C. § 1326 (illegal reentry) and related offenses.
He moved to dismiss the § 1326 count, arguing his prior removal was invalid because (1) his IRCA adjustment had constituted an "admission" and (2) the removal hearing was fundamentally unfair (failure to advise of § 212(h) waiver and inadequate counsel waiver).
The district court denied the motion; the Ninth Circuit affirmed, holding termination of temporary resident status reverted Hernandez-Arias to his prior unadmitted status and that he suffered no prejudicial due-process violation.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether IRCA temporary-resident adjustment constitutes an "admission" that prevents removal as an alien "not admitted or paroled"	Hernandez-Arias: adjustment to temporary resident status was an "admission," so he could not be removed as an unadmitted alien	Government: even if adjustment was an admission, termination of that status under 8 C.F.R. § 245a.2(u)(4) returns alien to prior unadmitted status	Court assumed adjustment may be an admission but held termination revoked any admission and reverted him to unadmitted status; removal valid
Whether termination of IRCA temporary status is equivalent to rescission (which would void any prior admission)	Hernandez-Arias: termination should be treated as rescission, erasing the admission and precluding removal	Government: termination is not rescission; it functions like a later severance that returns alien to prior unlawful status without voiding benefits accrued while lawful	Court: termination is like divorce (severs status prospectively), not annulment; thus termination returns alien to prior unlawful status and is not a rescission that erases past benefits
Whether IJ’s failure to advise of potential § 212(h) waiver violated due process causing prejudice	Hernandez-Arias: IJ failed to inform him of possible § 212(h) relief, causing prejudice and fundamental unfairness	Government: § 212(h) waiver is not available for removals based on being present without admission; no plausible prejudice	Court: no prejudice because § 212(h) could not have provided relief for his charged ground of removability; failure to advise therefore not fundamentally unfair
Whether IJ failed to individually advise right to counsel / obtain valid waiver	Hernandez-Arias: IJ did not individually advise or secure a valid waiver of counsel, rendering hearing unfair	Government: issue not raised below; waived	Court: claim was not preserved in district court, thus waived on appeal; not considered further

Key Cases Cited

Hing Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010) ("admission" generally a procedural event, not substantive status)
Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006) (adjustment events can qualify as admissions)
Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001) (adjustment to LPR equated with admission)
United States v. Valdavinos-Torres, 704 F.3d 679 (9th Cir. 2012) (standard of review for § 1326 dismissal based on due process in removal)
United States v. Vidal-Mendoza, 705 F.3d 1012 (9th Cir. 2013) (limitations on collateral attack to removal orders under § 1326)
United States v. Reyes-Bonilla, 671 F.3d 1036 (9th Cir. 2012) (definition of "fundamental unfairness" under § 1326(d))
United States v. Ramos, 623 F.3d 672 (9th Cir. 2010) (§ 212(h) waiver does not provide relief for aliens removed for presence without admission)
United States v. Arce-Hernandez, 163 F.3d 559 (9th Cir. 1998) (IJ duty to advise when record suggests eligibility; prejudice requires plausible relief)
United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004) (due process failure can excuse exhaustion)
Go v. Holder, 744 F.3d 604 (9th Cir. 2014) (one-judge BIA decisions not entitled to Auer deference)