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USA v. Sabino Rodriguez-Hernandez (9th Cir 8-17-2012)
http://www.ca9.uscourts.gov/datastore/memoranda/2012/08/17/11-50306.pdf FILEDTo all those who cried aboutPlyer v. Doe (U.S. Sup. Crt.) NOT FOR PUBLICATION AUG 17 2012which ensured K-12 educationeven for illegal aliens, you can MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALSstop crying now. Because hewas educated in the U.S.since "Head Start" into High FOR THE NINTH CIRCUITSchool, he could not say thathe did not understand English! UNITED STATES OF AMERICA, No. 11-50306 Plaintiff - Appellee, D.C. No. 3:10-cr-05085-JAH-1 v. MEMORANDUM * SABINO RODRIGUEZ-HERNANDEZ, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding Argued and Submitted August 10, 2012 Pasadena, California Before: SILVERMAN and WARDLAW, Circuit Judges, and FOGEL, District Judge.** Sabino Rodriguez-Hernandez appeals his conviction following his conditional guilty plea to one count of being a deported alien in the United States, in violation of 8 U.S.C. § 1326(a) & (b). Rodriguez-Hernandez argues that the * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jeremy D. Fogel, United States District Judge for the Northern District of California, sitting by designation.
district court erred in denying his motion to dismiss the indictment on the groundthat his initial deportation was invalid. We conclude that Rodriguez-Hernandezvalidly waived his right to appeal the decision of the Immigration Judge (IJ), and A bogus collateral attack on the underlying removalwe affirm the district court. proceeding. Read on to see why I call it bogus. On September 9, 1999, the IJ ordered Rodriguez-Hernandez removed on thebasis that he had been convicted of an aggravated felony. Rodriguez-Hernandezwaived his right to appeal, was deported, and subsequently re-entered the UnitedStates. Rodriguez-Hernandez now claims that the original deportation order was inerror and that he did not understand English well enough to give a “considered andintelligent” waiver of his right to appeal. Ubaldo-Figueroa, 364 F.3d at 1048(citation omitted). The government bears the burden of demonstrating by “clearand convincing evidence” that the defendant’s waiver was considered andintelligent. See United States v. Pallares-Galan, 359 F.3d 1088, 1097 (9th Cir.2004). The government has met its burden. The record demonstrates thatRodriguez-Hernandez sufficiently understood the proceedings. Rodriguez-Hernandez elected to hold the proceedings in English, declining the opportunity toproceed in Spanish. According to the record, Rodriguez-Hernandez learnedEnglish while attending school exclusively in the United States, beginning in Head 2
Start and continuing through two years of high school. In contrast to the“numerous” and “repeated” expressions of difficulty understanding which we haveheld in other cases to signal a lack of comprehension, the transcript of thedeportation proceeding shows that Rodriguez-Hernandez responded intelligently tothe IJ’s questions and understood the nature of the proceedings here. Perez-Lastorv. INS, 208 F.3d 773, 778-79 (9th Cir. 2000). Although Rodriguez-Hernandez expressed momentary confusion regardingthe legal term “object,” in response the IJ both explained the term and repeated thequestion a second time in a form that Rodriguez-Hernandez understood. The IJalso throughly described to Rodriguez-Hernandez the detailed consequences of hiswaiver, and went so far as to explain that other courts might disagree with the IJ’sfindings. The IJ’s extremely thorough colloquy concerning Rodriguez-Hernandez’s right to appeal allowed Rodriguez-Hernandez time to considerwhether to exercise that right, and he gave affirmative, nonequivocal responses tothe IJ’s questions. See Pallares-Galan, 359 F.3d at 1097 (9th Cir. 2004) (holdingthat an IJ must adequately explain the consequences of a waiver to the individualwho will be deported). Given these factors, we conclude that Rodriguez- 3
Hernandez validly waived his right to appeal, and he is therefore barred from collaterally attacking the original deportation order.1 AFFIRMED.8 USC §1326. Reentry of removed aliens(a) In generalSubject to subsection (b) of this section, any alien who—(1) has been denied admission, excluded, deported, or removed or has departed the United States while anorder of exclusion, deportation, or removal is outstanding, and thereafter(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to hisreembarkation at a place outside the United States or his application for admission from foreign contiguousterritory, the Attorney General has expressly consented to such aliens reapplying for admission; or (B) withrespect to an alien previously denied admission and removed, unless such alien shall establish that he wasnot required to obtain such advance consent under this chapter or any prior Act,shall be fined under title 18, or imprisoned not more than 2 years, or both..(b) Criminal penalties for reentry of certain removed aliensNotwithstanding subsection (a) of this section, in the case of any alien described in such subsection—(1) whose removal was subsequent to a conviction for commission of three or more misdemeanors involvingdrugs, crimes against the person, or both, or a felony (other than an aggravated felony), such alien shall befined under title 18, imprisoned not more than 10 years, or both;(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shallbe fined under such title, imprisoned not more than 20 years, or both;(3) who has been excluded from the United States pursuant to section 1225(c) of this title because the alienwas excludable under section 1182(a)(3)(B) of this title or who has been removed from the United Statespursuant to the provisions of subchapter V, and who thereafter, without the permission of the AttorneyGeneral, enters the United States, or attempts to do so, shall be fined under title 18 and imprisoned for aperiod of 10 years, which sentence shall not run concurrently with any other sentence; or(4) who was removed from the United States pursuant to section 1231(a)(4)(B) of this title who thereafter,without the permission of the Attorney General, enters, attempts to enter, or is at any time found in, theUnited States (unless the Attorney General has expressly consented to such aliens reentry) shall be finedunder title 18, imprisoned for not more than 10 years, or both..For the purposes of this subsection, the term “removal” includes any agreement in which an alien stipulatesto removal during (or not during) a criminal trial under either Federal or State law. 1 Because we conclude that Rodriguez-Hernandez validly waived his right to appeal and therefore cannot collaterally attack his prior deportation, we do not reach the question of the validity of the underlying deportation. 4