F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

J O S E L U I S H E R

N A N D E Z -A R

I A S , D efendant-Appellant

. No. 12-50193

D.C. No. 3 :11-cr-00368-B EN-1

ORDER AND AMENDED OPI NI ON

A ppeal from the United States District Court for the Southern District of California Rog er T. B enitez , District J u dg e, Presiding

Arg ued and Submitted J uly 8, 2013—Pasadena, California

F iled March 21, 2014 Amended Aug

u st 5, 2014

B e fore: Susan P. Graber, J ohnnie B . Rawlinson, and Paul J . W atford, Circuit J udg es.

Order; Opinion by

J u dg e Rawlinson; Concurrence by J udg e W atfordU N I T E D S T A T E S V

. H E R N A N D E Z -A R

I A S 2

SUMMARY *

C rim inal/Im m igration

The panel (1) amended its March 21, 2014, opinion affirming a criminal judg ment 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 o f his due pr o c e s s r i g hts; and (2) denied a petition for rehearing en banc on behalf of the court.

The panel amended the opinion to a dd a f ootnote limiting the effect of its holding a nd its discussion of r esci s sion a nd
te r mination of status to those admissions arising u nder the provisions for adjustment to lawful temporary resident status authoriz ed by 8 U.S.C. § 1255a(a) and implemente d at 8 C.F

. R. § 245a.2.

The defendant’s challeng e cen t e r e d on whether a noncitiz en can be removed as a n alien found in the United States without h a v i ng been “admitted or paroled” under section 212(a)(6)(A)(i) of the I mmig ration 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 o p e r a t ed to r e voke any “admission” resulting from the prior a d j u s t ment of status, rendering the defendant unadmitted and removable. B ecause the defendant’s removal order was not fundamentally unfair, the panel affirmed the district court’s denial o f his motion to dismiss the indictment.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. H E R N A N D E Z -A R

I A S 3

The panel deemed waived on appeal the def e n d ant’s claim that t h e i mmig ration judg e failed to advise him of his rig ht to c ounsel and/or obtain a valid waive r o f t h e rig h t to counsel.

The panel concluded that the fine imp o sed was reasonable.

Concurring

, J udg e W atford w rote that the panel need not say any thing bey ond 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 a djustment,” which in the defendant’s case was that of an alien “present in the United States without being admitted or paroled.”

COUNSEL

Harini P. Rag h upathi, F ederal Defenders of San Dieg o, I n c., San Dieg o, California, for Defendant-Appellant.

L au ra E. D uffy

, B ruce R. Castetter, and Stephen P. Clar k (arg ued), O ffice of the United States Atto r ney , San Dieg o, California, for Plaintiff-Appellee.U N I T E D S T A T E S V

. H E R N A N D E Z -A R

I A S 4

ORDER

The opinion filed on March 21, 2014 is hereby amended as follows:

F ollowing p ag e 1 2, first f ull parag raph, the following footnote is appended:

3 Our r evi ew in this case is confined to the operation o f I R C A a nd its unique implementing reg ulations. Our disposition of t h i s case does n ot contradict Hing Sum v

. Holder , 602 F

. 3d 1 0 92 (9th Cir. 2010), which holds that the word “admission,” e ither at the border or throug h adjustment of status or some other administr at i v e process, g enerally refers to a procedural event rather t h a n a substantive status. Id

. at 1096; s e e also id

. at 1099–1101 (tracing the evolution of the statutory definition of “admission”). J ust as Cong ress had authority to adopt an admission- b as e d removal sy stem

o v er an entry -based deportation sy stem in the I lleg al I mmig r a tion and I mmig rant Responsibility A c t o f 1 9 96, so too did it h ave the authority to dictate the specific contours o f I RCA’s temporary r esident provisions, which include an adjustment o f status proces s ( and a reg ulatory definition o f “admission”) unknown elsewhere in immig ration law. According ly

, we l i m i t the effect o f our holding and our discussion o f resciss i o n and termination of status to those admissions arising under the provisions for ad j u s t ment to lawful temporary resident status a u t horiz ed by 8 U .S.C. § 1255a(a) and implemented at 8 C.F

. R. § 245a.2.

W ith this amendment, the panel v otes to deny the Petition for Rehearing

En B anc.U N I T E D S T A T E S V

. H E R N A N D E Z -A R

I A S 5

The full court has been a dvised of the Petit i o n f o r Rehearing En B anc, and no judg e of the court has r equest ed a vote on it.

The Petition for Rehearing En B anc, filed on M ay 5, 2014, is D ENIED

. No additional petitions for rehearing will be entertained.

OP INION

RAW L I NSON, Circuit J udg e:

J ose L uis Hernandez -Arias appeals the d en ial of his motion t o dismiss the indictment charg ing him with attempted reentry after a prior removal in viol at i o n o f 8 U.S.C. § 1326. He arg u es that the conviction was predicated on a

removal order that was obtained in violation of his due process rig hts. Hernandez -Arias’s challeng e centers on whether a non-citiz en can be removed as an alien found in the United States without having been “admitted o r paroled” w here the alien adjusted to temporary resident status, but that status was later terminated. W e conclude that termination of Hernandez -Arias’s temporary status operated
to revo k e any “admission” resulting from the prior adjustment of status, rendering Hernandez -Arias unadmitted and removable.

I. F actual Background

Hernandez -Arias is a n ative and c itiz en of Mex ico w ho entered the United States w ithout inspection in 1981

. He isU N I T E D S T A T E S V

. H E R N A N D E Z -A R

I A S 6

the father of two Un i t ed States citiz en children. He has worked in an auto body shop and as a car salesman.

Hernandez -Arias was g r anted temporary resident sta t u s in 198 8 fo llowing his application for a mnesty pursuant to 8 U

. S .C. § 1255a(a). This status was revoked in 1 991 on account of his 1989 convic t i o n o f five counts of lewd a nd lascivious acts on a child under the a ge of 14 in violation o f Californi a Penal Code § 288(a)–(b). Hernandez -Arias was sentenced to six y ears in prison for each count, to b e s e rved concurrently

.

Hernandez -Arias was paroled from p rison in 1992. After

a leng thy in t e rlude, H ernandez -Arias ag ain came to the attention o f immig ration authorities in October, 2010, after he

was convicted of misdemeanor g rand t h e ft and sentenced to 120 day s in jail. Hernandez

- Arias was subsequently served with a Notice to Appear ( NTA) charg in g removability for being “an alien present in the United States who has n ot been admitted or paroled,” in violation of § 212(a)(6)(A)(i) of the I mmig r a tion and Nationality Act (I NA).

H ernandez -Arias a

ppeared pro se a t a g r oup remo v al hearing held on November 18, 2010. The immig ration judg e (I J ) informed the g roup of their “rig ht to be represented by an attorney , but at no ex p en s e t o the g overnment.” T he I J confirmed that each individual h ad received a list o f immig ratio n a ttorney s from the area and understood their responsibili t y t o contact such attorney s should they desire further a ssistance. The g roup c ollectively waived the rig ht to

cou n s e l

. T he I J also informed the g roup of potential elig ibility f

or certain forms of relief from deportation, including asy lum, Convention Ag ainst Torture (CAT) protection, cancellation of removal, adjustment of status, a ndU N I T E D S T A T E S V

. H E R N A N D E Z -A R

I A S 7

voluntary departure. H e did not specifically mention the potential for relief u n d er § 212(h) of the I NA (waiver o f inadmissibility ).

Dur i n g the individual c o mponent of the hearing

, the I J found Hernandez -Arias d eportable as charg ed b ased on his illeg al entry in 1982 1

. T he I J then soug ht to ascertain Hernandez -Arias’s potential elig ibility for relief. Hernandez

Arias stated that his wife had filed an applica t i o n for adjustment o f status on his b e h a lf in 2001, but that they “never received any

thing from that.” He noted t h at he h ad been convicted of child molestation in 1988 a nd h ad two U.S. citiz en children.

The I J advised Hernandez -Arias of h is uncertainty
reg arding whether Hernandez

- A rias “would be elig ible for a waiver o r n ot,” but that he mig ht be able to apply for a “g reen card” if his wife had applied for a d justment before “April 30 of 2001.” The I J also noted that Hernande z

- A ri as mig ht qualify for c ancellation of removal, but that such relief was doubtful g iven his criminal history

. I n a n y c a s e, the I J

ex p lained that Hernandez -Arias bore the b urden of proving elig ibility for relief. W hen asked whether he wished to take

some time to prepare his case, Hernandez -Arias declined a nd said that he did n o t w ish to pursue any relief. The I J according ly ordered Hernandez -Arias removed to Mex ico. Hernandez -Arias accepted the decision and waived his rig ht to appeal. He was deported on November 20, 2010.

Not even three weeks later, on December 9
, 2 010, Hernan d ez

- Arias applied for entry into the United States at

1 It ap p ears th at th e IJ in ten d ed to ref er t o 1 9 8 1 rath er th an

1 9 8 2 . T h at d iscrep an cy

is n o t an issu e o n

ap p eal.U N I T E D S T A T E S V

. H E R N A N D E Z -A R

I A S 8

the San Y sidro Port o f Entry using a f raudulent passport a

nd visa. Post-arrest, Hernandez -Aria s a dmitted to immig r ation
ag ents that he had previously been deported an d lacked lawful status.

The g overnment filed a three-count indictment ag ainst Hernandez -Arias, charg ing : (1) attempted reentry after a prior deportation in violation of 8 U .S.C. § 1326, (2) fraud and misuse of reentry docume n t s i n violation of 18 U .S.C. § 1546(a), and ( 3) ag g ravated id entity theft in violation o f 18 U.S.C. § 1028A. Hernandez -Arias moved to dismiss the § 1326 charg e for alleg ed defects in his underly ing removal. He a rg ued that he w as n ot removable as charg ed because he had b een “admitted” within the me a ning of the immig r ation
statutes when he was g r an ted temporary resident status. Hernandez -Arias also contended that his removal hea r i n g was fundamentally unfair because the I J h a d n o t advised him o f his potent i a l e lig ibility f

or § 212(h) relief. T he g overnment opposed the motion, arg uing that Hernandez -Arias’s removal comported with due process and that H ernandez -A rias h ad failed to ex haust available administrative remedies.

The district c ourt denied Hernandez -A r i as’s motion to d i smiss. I t concluded that Hernandez -Arias w as proper l y removed under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien w ho had not been admitted, because adjustment t o temporary resident status was not a

n “admission” within the meaning o f the immig r ation p rovisions. Alternatively

, the court held that

even if Herna n d e z

- Arias had been admitted as a temporary resident, the termination of his temporary residency operated
to return him to hi s p r i o r unadmitted status pursuant to 8 C.F .R. § 2 4 5 a

. 2 ( u )(4). T h e c ourt further h eld that Hernandez -Arias was not prejudiced by the I J ’s failu re to advise him of the availa b i l i ty of prospective relief underU N I T E D S T A T E S V

. H E R N A N D E Z -A R

I A S 9

§ 212(h) because Hernandez -Arias was statutorily inelig ible for that r elief. As Hernandez

- Arias failed to demonstrate a due process viola t i on resulting in prejudice, the court declined to reach the issue of administrative ex haustion.

A jury convicted Hernandez -Arias of illeg al reentry a nd fraudulent use of reentry documents, but acquitted him of the
ag g r avate d i d entity theft charg e. The district court imposed

a within- G uidelines sentence of 41 months’ imprisonment. The c ourt noted that the Guidelines rang e for th e fi ne was $7,500 to $75,000 for each count, b u t re cog niz ed that Hernandez -Arias did not have “the a bility to pay that k ind o f fine.” According ly

, the judg e ordered pay men t o f a $1,000 fine in installme n t s

. The fine amount and pay ment p lan mirrored the recomm e n dation in the Presentence Report, which provided n o d etails r e g a rding Hernandez -Arias’s ability to p ay

. Hernandez -Arias objected to the procedural and substantive reasonableness of his s e n tence, without specifically mentioning his fine. J udg ment was entered, a nd Hernandez -Arias filed a timely notice of appeal.

II. Standard of

Review

W e review de novo “the district court’s denial of a motion
to dismiss an ind i c t ment under 8 U.S.C. § 1326 when the motion is b ased on a

n alleg e d deprivation of due process in the und er l y i n g removal p roceeding s.

. . .” United States v

. Valdav i n os-Torres
, 704 F .3d 679, 685 (9th Cir. 2 012) ( c i tation omitted). W hen a party does not assert a speci fi c objection in the district court, as is the case with respect to the imposition of the fine here, we review for plai n error. See United States v. Santiago
, 4 66 F .3d 801, 803 (9th Cir. 2006). “A district court ’ s f

i n d i ng of whether a defendant is able toU N I T E D S T A T E S V

. H E R N A N D E Z -A R

I A S 10

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 Rem oval Order

An alien who “has been d en i ed admission, ex cluded, deported, o r r e m o v e d” commits a crime if the alien “enters, attempts to enter, or is at a n y time found in, the United States.” 8 U.S.C. § 1326(a). One method of v i olating § 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-Mendoz a , 705 F .3d 1012, 1 014–15 (9th Cir. 2013). “Cong re s s h a s strictly limited an alien’s ability to bring a collateral cha l l e n ge to such an order.

. . .” Vidal-Mendoza

, 705 F .3d at 1014–15 (citation omitted). An alien facing criminal charg es may initiate a c oll a teral attack on the

u n d e rly ing order only if “(1) the alien ex hausted any administrative remedies that may have been available to seek relief ag ainst the order; (2) the dep o rt at ion proceeding s at which the order was issued improperly deprived the alien o f the opportunity for judicial r eview; and (3) the entry of the order was fundamentally

unfair.” 8 U.S.C. § 1326(d).

I f the alie n e stablishes a due process violation that prevented his waiver of appeal from being knowing a nd intellig ent, he i s e x cused from the ex haustion requirement. See United States v. Ubaldo-Figueroa

, 364 F .3d 1042, 1048 (9th Cir. 2004). T herefore, the crucial question in this case is whether Hernandez -Arias has demonstrated a due process violation and fundamental unfairness. F undamental unfairness “for purposes o f § 1326(d)(3) [ is demonstrated] when the deportation proceed i n g v iolated the alien’s d ueU N I T E D S T A T E S V

. H E R N A N D E Z -A R

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process r ig h ts and the alien suffered prejudice as a resul t

. ” United States v. Reyes-Bonilla

, 671 F .3d 103 6
, 1 0 4 3 (9th Cir.), cert. d

enied

, 1 33 S. Ct. 3 22 (2012) (citation omitted). Hernandez -Arias alleg es three distinct due process violations in his removal proceeding : (1) that he was not removable a s charg ed because he w as “admitted” within the meaning o f immig ration law w h en he w as g ranted temporary resident status; (2) that he was not informed of his potential elig ibility for a § 212(h) waiver; and ( 3 ) that he was not adequately advised of his rig ht to c ounsel. He contends that he suffered prejudice from these v iolations because he was removed when he should n ot have been or, alternatively

, was removed despite the availability

of viable avenues for relief. None of Hernandez -Arias’s arg

uments is persuasive.

1) Hernandez-Arias was removable as charged

.

The g overnment alleg ed in the NTA that H e r n a n d e z-Arias

was removable p ursuant to 8 U .S.C. § 1 1 82(a)(6)(A)(i) for being “[ a] n alien present in the United St ates without being admitted or paroled

. . .” Hernandez -Arias was g ran ted temporary resident status in 1 988 p ursuan t to the amnesty provisi o n s of the I mmig ration Reform and Control Act o f 1986 (I RCA) (codified at 8 U.S.C. § 1255a). 2 I RCA created

a one-y ear window b e t w een 1987 and 1988 in which a liens who unlawfully entered the U nite d States before J anuary 1, 1982, c ould obtain L awful Permanent Resident ( L PR) status. See 8 U.S.C. § 1255a(a)–(b). A two-step process was involved. F irst, an a lien was required to apply for temporary residence. See id

. § 1255a(a). Nex t, t h e temporary resident had to f ile an application for adjustment to L PR status within

2 Ref eren ces t o 8 U.S.C. § 1 25 5 A w ill b e cited as § 1 2 5 5 a to b e

co n sisten t w ith

citatio n s in

o n lin e ref

eren ce so u rces.U N I T E D S T A T E S V

. H E R N A N D E Z -A R

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f o r t y

- t hree months after adjustment of status to that of a temporary resident. S

ee i d

. § 1255a(b). Hernandez -Arias completed the first step, but not the second.

The I N A defines “admission” a n d “admitted” as “the lawful ent ry o f the alien into the United States a fter inspection and authoriz ation by an immig ration officer.” Id

. § 1101(a)(13)(A). This definition applies across t he I NA. 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)

. . . r efers to a p rocedurally reg ular admission and not a substantively lawful admis s i o n

. ” Hing Sum v. Holder

, 602 F .3d 1 092, 1 096 ( 9th Cir. 2010) (footnote reference omitted). T hus, an alien is “admitted” pursuant to § 1101(a)(13)(A) when he underg oes the process o f “inspection and authoriz a tion by an immig ration officer at the port of entry ”, id. at 1101, reg a rdless of whether the a l i en initially entered lawfully

. See id . at 1099.

B ec a use Hernandez

- Arias was never inspected at the border, he was not “admitted” as that term is d efined in § 1101(a)(13)(A). H owever, “both this court and the B I A
, in precedential decisions, have not limi ted the scope o f ‘admitted’ to [ § 1101(a)(13)(A)’s] strict d efinition.” GarciaQuintero v. Gonzales

, 4 55 F

. 3 d 10 0 6
, 1015 (9th Cir. 2006). Certain even t s , s uch as adjustment to L PR status o r acceptance into the F amily Unity Prog ram (F UP), qualify

as “admission” for immig ration purposes. See id. at 1 018–19 ( r ecog niz ing alien as “admitted in any status” upon

ac c e p t a n ce into the F U P); see also Ocampo-Duran v

. Ashcroft

, 254 F .3d 1133, 1134–35 ( 9th Cir. 2001) (classify ing alien who e n t e r e d without inspection as admitted upon adjustment to L PR status). The B I A considers “[ a] djustment of status [ as] essentially a p r o x y for inspection a ndU N I T E D S T A T E S V

. H E R N A N D E Z -A R

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p e rmission to enter at the border, w hich is g iven as a mat t e r of administrative g race.

. . .[ The B I A has] c o n s i s tently construed an adjustment of status as an ‘admission.

. . . ’” I n

r e Koljenovic

, 25 I & N D ec. 219, 221 (B I A 2 0 1 0 ). Acc o r d i n g to the B I A, “adjustment a pplicants are to be treated as if they are being ‘admitted.’.

. .” Id .; see also In re Alyazji

, 25 I & N Dec. 397
, 4 0 4 ( B I A 2011) ( declining the invitation from the Department of H omeland Security to redefine the term “‘admission’ on a case-by

- case basis” a nd concluding that “ a d

j ustment of status constitutes an admission”).

I t c o uld b e persuasively arg ued that admission to temporary r e s i dency qualifies as an “admission.” The relevant statutory tex t includes the word “admitted,” providing that “[ t] he Attorney General shall adjust the status of an a lien to that of an alien lawfully admitted for temporary residence [ if the applicant fulfills certain require m e n ts]

. ” 8 U.S.C. § 1 255a(a) ( emphasis a dded). A nd, as with lawful admission for permanent residence, lawful a dmis s i on for temporary residence involves the statutory fiction of an administrative “inspection” b y immig ration officials coupled with leg al permission to r e main in the United States. See Koljenovic

, 2 5 I & N Dec. a t 221. Our log ic in OcampoDuran also sug g ests that the g rant o f lawful temporary resident status should constitute a n admission. See OcampoDuran
, 254 F

. 3 d at 1 1 35 ( equating the privileg e of lawfully residing in the c ountry with an a dmission); see also Lawrence v. Holder , 717 F .3d 1036, 1040 (9th Cir. 2013) (deferring to the Attorney General’s interpretation of I NA § 2 1 2 ( c ) defining “admissions” a s encompassing applications for § 212(c) relief). W ithout deciding the issue, we assume that adjustment to temporary resident status pursuant to § 1255a(a) is an “admission” under the immig ration laws.U N I T E D S T A T E S V

. H E R N A N D E Z -A R

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W e n eed n ot d efinitively resolve whether Her n a n d ez

Arias’s a djustment to temporary resident status constituted an admission because, even if it d id, terminati o n of that status operated to revoke any prior admission. Hernandez -Arias’s 1989 convictions rendered h im statutorily inelig ible f o r further p articipation in the amnesty prog ra m , and his temporary resident status was terminated by the I mmig r ation and Naturaliz ation 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 statu s o f any alien previously adjusted to lawful temporary residence under section 2 45a(a) of the A ct shall act to return such alien to the unlawful statu s h e l d prior to the adjustment, and render him o r her a menable to e x clusion o r deportation proceeding s under section 236 or 242 of the Act,

as a ppropriate.” Once Hernandez -Arias’s temporary resident
status w as terminated, by o peration of the g overning
reg ulation, he automatically reverted to his prior u nlawf u l

, unadmitted

status. 3

3 Ou r rev iew i n th is case is co n f in ed to t h e o p e r a t i o n o f I R C A an d its

u n iq u e im

p lem en tin g reg u l atio n s

. Ou r d isp o sitio n o f th is case d o es n o t

c o n t rad ict Hin g S

u m v. Ho ld

er , 6 0 2 F .3 d 1 0 9 2 (9 th Cir. 2 0 1 0 ), w hi c h h o ld s th at th e w o rd “ ad m issio n ,” eith er at th e bo rd er o r t h ro u g h ad j u stm en t o f statu s o r so m e o th er ad m in istrativ e p ro cess, g en erally ref ers to a p ro ced u ral ev en t rath er th an a s u bstan tiv e statu s. Id

. at 1 0 96 ; see a l so i d

. at 1 0 9 9

– 1 10 1 (tracin g th e ev o lu tio n o f th e statu to ry d ef i n itio n o f

“ ad m issio n ”). J u st as C o n g ress h ad au th o rity t o ad o p t an ad m issio n

- b ased

rem o v al sy stem o v er an en try

- b ased d ep o rtatio n sy stem i n th e Illeg al Im m i g ratio n an d Im

m ig ran t Resp o n sib ility A ct o f 1 9 9 6
, so to o d id it h av e th e au th ority to d ictate th e sp ecif ic co n to u rs o f IRCA ’ s tem po rary resid en t p r o v isio n s, w

h ich in clu d e an ad

j u stm en t o f statu s p ro cess (an d a reg u lato ry d ef

in itio n o f “ ad m i ssio n ”) u

n k n o w n elsew h ere in i m m ig ratio n law

. A cco rd in g ly

, w e lim it th e ef f ect o f ou r h o ld in g an d o u r discu ssio n

o f r e scissio n an d term in atio n of statu s to th o s e ad m issio n s arisin g u n der th e pro v isio n s f

o r ad j u stm en t t o law f

u l tem p o ra r y resid en t statu s

au th orized b y 8 U.S.C. § 12 5 5a(a) an d im p lem en ted at 8 C.F.R. § 24 5 a.2

.U N I T E D S T A T E S V

. H E R N A N D E Z -A R

I A S 15

H e r n a n d e z

- A r i a s ’ s c ontention that h e retained the benefit s of his a djustment to temporary residence despite termination of that status lacks tex tual support in the a p p l i cable
reg ulation. W e re 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 § 2 45a.2(u)(4) (emphasis added). The
reg ulatio n a l s o specifies that termination of status rendered Hernandez -Arias s u bject to removal under sections 236 (ex clusion) or 242 (deportation) of the I N A. See id.

F airly read, 8 C.F .R. § 245a.2 describes a limited f orm o f

s tatus w ith no lasting immig ration benefit. The reg ulation specifically provides that “[ a] n a lien whose status is adjusted
to that o f a lawful temporary resident under section 245a[ 4 ] o f the Act is not entitled to . . . any . . . benefit or consideration accorded u nder the Act to aliens lawfully admitted for permanent residence.” 8 C.F .R. § 2 45a.2(v). To the ex tent that “ admission” is a lasting immig ration b e nefit conferred
upon L PRs, see Ocampo Duran
, 2 54 F .3d at 1134–35, similar
treatment of temporary residents is foreclose d u nder the
g overning reg ulation.

Hernandez -Arias contends that terminating his admission would effect a “rescission of status” in v iolation of 8 C.F .R. § 245a.2(u)(3), which p r o vides that “the phrase termination of status of a

n alien g ranted lawful temporary residence under sectio n 245a(a) of the Act shall not be construed to necessitate a rescission of status as d escribed in section 246

4 Ref eren ces to sectio n 2 4 5 a o f th e A ct are to th e s tatu to ry pro v isio n s

co d if ied at 8 U.S.C. § 1 2 5 5 a. S ee 8 C.F.R. § 2 45 a.2 (Head in g s).U N I T E D S T A T E S V

. H E R N A N D E Z -A R

I A S 16

of the Act,[ 5 ] and the proceeding s required by the reg ulations issued thereunder shall not apply .” However, w e do not view termination in this contex t to be analog ous to rescission. The difference between res cission and termination is one o f timing

, similar to the d iff e r e n c e between annulment a nd divorce. The leg al ef

fect of an annulment is to return the parties to the status of individuals w ho were never married to each other

. See Purganan v

. S chweiker

, 665 F

. 2d 269, 270 (9th Cir. 1982) (noting that g enerally a nnulment relates back and “erase[ s] the marriag e and a l l i t s implications f rom the outset”). A consequence of an n u l m e n t is that none of the benefits accumulated during the marriag e is retained. See id

. I n contrast, a divorce severs the marital union as of t h e date the divorce becomes final. See St e ve Escalera, California Marital Annulments

, 1 1 J

. C O N T E M P

. L E G A L I S S U E S 153, 153–54 ( 1997) (“W h ereas a d i v orce judg ment dissolves an

ex isting marriag e—according full leg al recog nition to the marriag e relationship between the date o f its f o r m a tion a

nd the date of termination of the marital s t a tus—an annulment judg ment is said to ‘relate back’ and eras e t h e marriag e a nd all its implications from the outset.”). Any benefits accrued during the duration o f the marriag e continue to ex ist a fter divorce. See, e.g. , Cal. F am. Code § 760 (noting that property acquired during the marriag e is thereafter con s i d ered community

property ).

Termination of Hernandez -Arias’s temporary resident
status is more akin to a divorce than to an annulment. The
g overnment is not seeking to deprive Hernandez -Arias of any benefits he may have a ccrued while residing in th e United

5 R e fe r e n c e s to sectio n 24 6 o f th e A ct are to th e statu to ry pro v isio n s

co d if ied at 8 U.S.C. § 1 2 5 6

. S ee 8 U.S.C. § 12 5 6 (d iscu ssin g rescissio n

o f ad j u stm en t o f

statu s).U N I T E D S T A T E S V

. H E R N A N D E Z -A R

I A S 17

S t a tes. F or ex ample, if Hernandez -Arias were elig ible fo r cancellation of removal, he would be entitled to count all the time he was present as a temporary resident t o w ard the ph y sical presence requirement. S ee 8 U.S.C. § 1229b ( d i s cu s s i n g t h e p h y s i c a l p r e s e n c e r e q u i r e m e n t f o r inadmissible o r d eportable aliens). T hat would not be true if Her n andez -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 w h e n the alien was never elig ible for the adjustment g ranted); see a lso 8 C.F .R. § 246.1 (describing rescission procedure). I ndeed, it is telling that the immig ration authorities have nev e r c o n t e n d e d t hat Hernandez -Arias w as inelig ible f or a djustment o f status to that of a temporary

resident.

W e need n ot and do not d ef e r to the B I A’s unpublished, one-judg e decision in In re Castro-Valdez

, 2012 W L 391158 (B I A 2012), finding “admitted” an alien whose adjustment o f
status h ad been terminated. A o ne-member, n on-precedential order like this one is not entitled to deference under A u e r v

. Robbins

, 5 19 U.S. 4 52 (1997), a s an interpret a t i o n o f an ag ency reg ulation, because it does not reflect t h e B I A ’s considered judg ment on the q uestion. See Go v. Holder

, No. 11-73272, __F .3d__ n .1 (9th Cir. 2014) (citing LezamaGarcia v. Holder

, 666 F

. 3d 518, 532 (9th Cir. 2011)). In re Castro-Valdez did not rely on any supporting authority in its analy sis and its cursory re v i ew of the reg ulation lacks persuasive power.

F or the reasons d i scussed, we conclude that Hernandez

Arias’s removal as a n alien “ not admitted or paroled” a s alleg ed in the NTA was not “ fundamentally unfair.” T h e termination o f his temporary resident s t at us returned h im to the status of an inadmissible alien subject to removal.U N I T E D S T A T E S V

. H E R N A N D E Z -A R

I A S 18

2) Hernandez-Aria s was not eligible for a § 212( h) waiver

. 6

W h en the record supports an inference that an a lie n in removal proceeding s is elig ible f or relief from removal, the I J must advise the alie n o f h i s elig ibility for the potential relief. S ee United S t a t es v. Arce-Hernandez

, 163 F .3d 559, 563 (9th Cir. 1999), as amended

. However, t o e s t ablish fundamental unfairness for f a i l u r e to advise o f potential elig ibility f

or relief, an alien must show prejudice in the form of “plausible g rounds for relief from deportation. . . .” Id

.

Herna n dez -Arias is foreclosed from d emonstrating
p rejudice because “I

N A § 212(h) does not provide relief f o r aliens removed for illeg al p resence in the United States without admission o r parole in v i o l a tion of 8 U .S.C. § 1182(a)(6)(A)(i),” the sole bas i s of Hernandez -Arias’s removal. United States v. Ramos
, 623 F .3d 672, 684 (9th Cir. 2010). F or a § 212(h) waiver to be plausible, we would have
to conclud e that Hernandez -Arias was not removable a s charg ed. See id. B ecause we have con c l u ded that termination o f Hernandez -Arias’s tem porary status r eturned him to the status of an inadmi ssible alien, Hernandez -Arias
cannot demon strate prejudice in the f orm of a plausible
g round for available relief. See Arce-Hernandez

, 163 F .3d at 563.

6 Ref eren ces to § 2 1 2 (h ) are to 8 U.S.C. § 1 1 8 2 (h ).U N I T E D S T A T E S V

. H E R N A N D E Z -A R

I A S 19

3) Hernandez-Aria s d i d not preserve his c laim that
t h e I J failed to advise h im of his right to counsel and/or obtain a valid waiver of the right to counsel

.

F or the f irst time on a

ppeal, Hernandez -Arias arg ues that his removal was fundamentally unfair because the I

J did not individually a dvise him of h is rig ht to counsel or obtain a valid waiver of the rig

ht to counsel.

“[ A] n issue will g enerally be deemed waived on appeal if the argument was not raised sufficiently for the trial c ourt to rule on it.

. . .” Ruiz v. Affinity Logistics Corp.
, 667 F .3d 1318, 1322 (9th Cir. 2012) (citation omitted). I n the district
court proceeding s Hernandez -Arias s oug ht dismissal of the indictment solely on the g round that his temporary admission precluded h is removal. He never raised any challeng e predica t e d o n the I J ’s a lleg ed f ailure to properly advise him of his rig ht to c ounsel. W e therefore c o n sider this issue waived on appeal.

4) Conclusion

.

B e c a u se we conclude that Hernandez -Arias has not demonstrated any d

u e p r o cess violation resulting in prejudice, his order of removal w as not “fundamentally unfair.” ReyesBonilla

, 671 F .3d at 1043. F ailure to prove “ f u n d a m ental unfairness” preclu d e s a successful collateral attack o n the underly ing removal order pursuant to § 1326(d). Id .; see also United States v

. Calderon-Segura

, 512 F .3d 1 104, 1108 (9th Cir. 2008) (holding that the district c o u r t properly denied a motion to dismiss an indictment because the prior removal

w a s not “fundamentally unfair” u nder § 1326(d)(3)). W e affirm the district court’s denial of Hernandez -Arias’s motion to dismiss the indictment.U N I T E D S T A T E S V

. H E R N A N D E Z -A R

I A S 20

B. Reasonableness of the F ine

Hernand e z -Arias arg ues that the district court’s imposition o f a below-Guidelines f i ne of $ 1,000 was procedurally e rroneous due to an inadequate e x planati o n. Hernandez -Arias did not raise this specific o bjectio n b e fore the district cour t , a n d the record does not reflect an understanding by the district court that Hernandez -Arias’s
g eneral objection to his sentence covered the fine, see United States v. G r i s s o m , 525 F .3d 691, 695 (9th Cir. 2008), so we review for plain error. Se e S a n t iago
, 466 F

. 3 d at 803. B ut

even if the error were preserved and we were t o r e v i e w for reasonablene s s , see Orlando

, 553 F .3d at 1240, we would reach the same conclusion.

Under the Guidelines, a district court must impose a fine “in all c a ses, ex cept where the defendant establishes that he is u nable to p a

y and is not likely to become able to p a y any fine.” U .S.S.G. § 5E1.2(a). “The district court must consult the Guidelines’ recommendation, the § 3 5 5 3 (a) factors, a nd the 18 U.S.C. § 3 5 72(a) f actors to determine the appropriate n e ss of the imposition o f a fine and its
amount.

. . .” Orlando

, 5 5 3 F. 3 d a t 1239 (citation omitted). Althoug h a district court must “ ex plain the se n t e n ce”

s u f f i c iently to permit meaning ful review, an “[ a] dequate

ex p lanation not only derives from the judg e’s pronouncement of the s e n t ence, but may also be inferred f rom the [ presentence report] o r the record as a whole.” United States

v. Blinkinsop

, 6 06 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 r a

ng e f or the fine was between $7,500 a nd $75,000 for each count, but t h at Hernandez

- Arias d id notU N I T E D S T A T E S V

. H E R N A N D E Z -A R

I A S 21

have “the ability to pay that kind of fine.” According ly

, the judg e imposed a $1,000 fine. Althoug h the j u d ge did not

ex p lain at leng th his f

ine calculation, the amount imposed mirrored the r ecommenda t i on in the presentence r eport a nd Hernandez -Arias v o iced n o objection. “At sentencing

, the
court

. . . may accept a n y undisputed portion of the presentence report as a finding of fact[

. ] ” F ed. R. Crim. P. 32(i)(3)(A). Evidence in the record of Hernandez -Arias’s skill as a n auto mechanic a

nd car salesman supp o r t ed a n inference that he had the abi l i t y to pay the fine amount. Given t h e lack of a showing of inability to p ay the amount, the imposition of a $1,000 fine was reasonably supported b y facts in the r ecord. No further ex planation was required. See Orlando

, 553 F .3d at 1240 (upholding the imposition of a fine without requiring ex tensive ex planation).

IV. Sum m ary

The distric t court properly denied Hernandez -Arias’s

mo t ion to dismiss the indictment charg ing him with

a t t e mpted reentry after a prior removal in violation o f 8 U.S.C. § 1326. The removal order u nder which Hernandez

Ari a s was d eported was obtained in a manner that was consistent with Hernandez -Arias’s due process r i ghts. H e r n andez -Arias was removable as a n alien present in the country without admission. Once Hernandez

- A rias’s temporary status was terminated, his status reverted to that o f

an unadmitted alien subject to removal. The fine imposed b y the district court was reasonable.

AF F IRMED.U N I T E D S T A T E S V

. H E R N A N D E Z -A R

I A S 22

W A TF ORD, Circuit J udg e, concurring :

I a g ree that H ernandez -Arias was properly r em o v ed in 2010 as “[ a] n alien present in the United States without being

a dmitted or paroled.” 8 U.S.C. § 1182(a)(6)(A)(i). T h e statutory phrase “present in the United States witho u t b e i ng admitted or paroled” describes a status, one that Hernandez

Arias h eld after entering t h e country without inspection. Even if Hernandez -Arias lost t h at status when he obtained lawful temporary residence, he r eg ained that status when his lawful temporary residence was terminated. I f there were any doubt on that score, the g overning r eg ulation resolves it. The
reg ul a t i on states that termination of lawful temporary residence “shall act to r e turn such alien to the unlawful status held prior to the adjustment,” 8 C.F .R. § 245a.2(u)(4), which in H ernandez -Arias’ case was that of an alien “present in the United States without being admitted or p a r o led.” I don’t think we need to say a

n y thing bey o nd t h a t to resolve this issue.

I join the court’s opinion with respect to all other issues.