FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE LUIS HERNANDEZ-ARIAS,

Defendant-Appellant.

No. 12-50193

D.C. No.

3:11-cr-00368-BEN-1

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted

July 8, 2013—Pasadena, California

Filed March 21, 2014

Amended August 5, 2014

Before: Susan P. Graber, Johnnie B. Rawlinson,

and Paul J. Watford, Circuit Judges.

Order;

Opinion by Judge Rawlinson;

Concurrence by Judge Watford
2 UNITED STATES V. HERNANDEZ-ARIAS

SUMMARY*

Criminal/Immigration

The panel (1) amended its March 21, 2014, opinion

affirming a criminal judgment 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 of his due process rights; and (2)

denied a petition for rehearing en banc on behalf of the court. 

The panel amended the opinion to add a footnote limiting

the effect of its holding and its discussion of rescission and

termination of status to those admissions arising under the

provisions for adjustment to lawful temporary resident status

authorized by 8 U.S.C. § 1255a(a) and implemented at

8 C.F.R. § 245a.2.

The defendant’s challenge centered on whether a noncitizen can be removed as an alien found in the United States

without having been “admitted or paroled” under section

212(a)(6)(A)(i) of the Immigration 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 operated to revoke any

“admission” resulting from the prior adjustment of status,

rendering the defendant unadmitted and removable. Because

the defendant’s removal order was not fundamentally unfair,

the panel affirmed the district court’s denial of his motion to

dismiss the indictment. 

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. HERNANDEZ-ARIAS 3

The panel deemed waived on appeal the defendant’s

claim that the immigration judge failed to advise him of his

right to counsel and/or obtain a valid waiver of the right to

counsel.

The panel concluded that the fine imposed was

reasonable.

Concurring, Judge Watford wrote that the panel need not

say anything beyond 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 adjustment,”

which in the defendant’s case was that of an alien “present in

the United States without being admitted or paroled.”

COUNSEL

Harini P. Raghupathi, Federal Defenders of San Diego, Inc.,

San Diego, California, for Defendant-Appellant.

Laura E. Duffy, Bruce R. Castetter, and Stephen P. Clark

(argued), Office of the United States Attorney, San Diego,

California, for Plaintiff-Appellee.
4 UNITED STATES V. HERNANDEZ-ARIAS

ORDER

The opinion filed on March 21, 2014 is hereby amended

as follows:

Following page 12, first full paragraph, the following

footnote is appended:

3Our review in this case is confined to the operation of

IRCA and its unique implementing regulations. Our

disposition of this case does not contradict Hing Sum v.

Holder, 602 F.3d 1092 (9th Cir. 2010), which holds that the

word “admission,” either at the border or through adjustment

of status or some other administrative process, generally

refers to a procedural event rather than a substantive status. 

Id. at 1096; see also id. at 1099–1101 (tracing the evolution

of the statutory definition of “admission”). Just as Congress

had authority to adopt an admission-based removal system

over an entry-based deportation system in the Illegal

Immigration and Immigrant Responsibility Act of 1996, so

too did it have the authority to dictate the specific contours of

IRCA’s temporary resident provisions, which include an

adjustment of status process (and a regulatory definition of

“admission”) unknown elsewhere in immigration law. 

Accordingly, we limit the effect of our holding and our

discussion of rescission and termination of status to those

admissions arising under the provisions for adjustment to

lawful temporary resident status authorized by 8 U.S.C.

§ 1255a(a) and implemented at 8 C.F.R. § 245a.2.

With this amendment, the panel votes to deny the Petition

for Rehearing En Banc.
UNITED STATES V. HERNANDEZ-ARIAS 5

The full court has been advised of the Petition for

Rehearing En Banc, and no judge of the court has requested

a vote on it.

The Petition for Rehearing En Banc, filed on May 5,

2014, is DENIED. No additional petitions for rehearing will

be entertained.

OPINION

RAWLINSON, Circuit Judge:

Jose Luis Hernandez-Arias appeals the denial of his

motion to dismiss the indictment charging him with

attempted reentry after a prior removal in violation of

8 U.S.C. § 1326. He argues that the conviction was

predicated on a removal order that was obtained in violation

of his due process rights. Hernandez-Arias’s challenge

centers on whether a non-citizen can be removed as an alien

found in the United States without having been “admitted or

paroled” where the alien adjusted to temporary resident

status, but that status was later terminated. We conclude that

termination of Hernandez-Arias’s temporary status operated

to revoke any “admission” resulting from the prior

adjustment of status, rendering Hernandez-Arias unadmitted

and removable.

I. Factual Background

Hernandez-Arias is a native and citizen of Mexico who

entered the United States without inspection in 1981. He is
6 UNITED STATES V. HERNANDEZ-ARIAS

the father of two United States citizen children. He has

worked in an auto body shop and as a car salesman.

Hernandez-Arias was granted temporaryresident status in

1988 following his application for amnesty pursuant to

8 U.S.C. § 1255a(a). This status was revoked in 1991 on

account of his 1989 conviction of five counts of lewd and

lascivious acts on a child under the age of 14 in violation of

California Penal Code § 288(a)–(b). Hernandez-Arias was

sentenced to six years in prison for each count, to be served

concurrently.

Hernandez-Arias was paroled from prison in 1992. After

a lengthy interlude, Hernandez-Arias again came to the

attention of immigration authorities in October, 2010, after he

was convicted of misdemeanor grand theft and sentenced to

120 days in jail. Hernandez-Arias was subsequently served

with a Notice to Appear (NTA) charging removability for

being “an alien present in the United States who has not been

admitted or paroled,” in violation of § 212(a)(6)(A)(i) of the

Immigration and Nationality Act (INA).

Hernandez-Arias appeared pro se at a group removal

hearing held on November 18, 2010. The immigration judge

(IJ) informed the group of their “right to be represented by an

attorney, but at no expense to the government.” The IJ

confirmed that each individual had received a list of

immigration attorneys from the area and understood their

responsibility to contact such attorneys should they desire

further assistance. The group collectively waived the right to

counsel. The IJ also informed the group of potential

eligibility for certain forms of relief from deportation,

including asylum, Convention Against Torture (CAT)

protection, cancellation of removal, adjustment of status, and
UNITED STATES V. HERNANDEZ-ARIAS 7

voluntary departure. He did not specifically mention the

potential for relief under § 212(h) of the INA (waiver of

inadmissibility).

During the individual component of the hearing, the IJ

found Hernandez-Arias deportable as charged based on his

illegal entry in 19821

. The IJ then sought to ascertain

Hernandez-Arias’s potential eligibility for relief. HernandezArias stated that his wife had filed an application for

adjustment of status on his behalf in 2001, but that they

“never received anything from that.” He noted that he had

been convicted of child molestation in 1988 and had two U.S.

citizen children.

The IJ advised Hernandez-Arias of his uncertainty

regarding whether Hernandez-Arias “would be eligible for a

waiver or not,” but that he might be able to apply for a “green

card” if his wife had applied for adjustment before “April 30

of 2001.” The IJ also noted that Hernandez-Arias might

qualify for cancellation of removal, but that such relief was

doubtful given his criminal history. In any case, the IJ

explained that Hernandez-Arias bore the burden of proving

eligibility for relief. When asked whether he wished to take

some time to prepare his case, Hernandez-Arias declined and

said that he did not wish to pursue any relief. The IJ

accordingly ordered Hernandez-Arias removed to Mexico. 

Hernandez-Arias accepted the decision and waived his right

to appeal. He was deported on November 20, 2010.

Not even three weeks later, on December 9, 2010,

Hernandez-Arias applied for entry into the United States at

1

It appears that the IJ intended to refer to 1981 rather than 1982. That

discrepancy is not an issue on appeal.
8 UNITED STATES V. HERNANDEZ-ARIAS

the San Ysidro Port of Entry using a fraudulent passport and

visa. Post-arrest, Hernandez-Arias admitted to immigration

agents that he had previously been deported and lacked

lawful status.

The government filed a three-count indictment against

Hernandez-Arias, charging: (1) attempted reentry after a

prior deportation in violation of 8 U.S.C. § 1326, (2) fraud

and misuse of reentry documents in violation of 18 U.S.C.

§ 1546(a), and (3) aggravated identity theft in violation of

18 U.S.C. § 1028A. Hernandez-Arias moved to dismiss the

§ 1326 charge for alleged defects in his underlying removal. 

He argued that he was not removable as charged because he

had been “admitted” within the meaning of the immigration

statutes when he was granted temporary resident status. 

Hernandez-Arias also contended that his removal hearingwas

fundamentally unfair because the IJ had not advised him of

his potential eligibility for § 212(h) relief. The government

opposed the motion, arguing that Hernandez-Arias’s removal

comported with due process and that Hernandez-Arias had

failed to exhaust available administrative remedies.

The district court denied Hernandez-Arias’s motion to

dismiss. It concluded that Hernandez-Arias was properly

removed under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien who

had not been admitted, because adjustment to temporary

resident status was not an “admission” within the meaning of

the immigration provisions. Alternatively, the court held that

even if Hernandez-Arias had been admitted as a temporary

resident, the termination of his temporary residency operated

to return him to his prior unadmitted status pursuant to

8 C.F.R. § 245a.2(u)(4). The court further held that

Hernandez-Arias was not prejudiced by the IJ’s failure to

advise him of the availability of prospective relief under
UNITED STATES V. HERNANDEZ-ARIAS 9

§ 212(h) because Hernandez-Arias was statutorily ineligible

for that relief. As Hernandez-Arias failed to demonstrate a

due process violation resulting in prejudice, the court

declined to reach the issue of administrative exhaustion.

A jury convicted Hernandez-Arias of illegal reentry and

fraudulent use of reentry documents, but acquitted him of the

aggravated identity theft charge. The district court imposed

a within-Guidelines sentence of 41 months’ imprisonment. 

The court noted that the Guidelines range for the fine was

$7,500 to $75,000 for each count, but recognized that

Hernandez-Arias did not have “the ability to pay that kind of

fine.” Accordingly, the judge ordered payment of a $1,000

fine in installments. The fine amount and payment plan

mirrored the recommendation in the Presentence Report,

which provided no details regarding Hernandez-Arias’s

ability to pay. Hernandez-Arias objected to the procedural

and substantive reasonableness of his sentence, without

specifically mentioning his fine. Judgment was entered, and

Hernandez-Arias filed a timely notice of appeal.

II. Standard of Review

We review de novo “the district court’s denial of a motion

to dismiss an indictment under 8 U.S.C. § 1326 when the

motion is based on an alleged deprivation of due process in

the underlying removal proceedings. . . .” United States v.

Valdavinos-Torres, 704 F.3d 679, 685 (9th Cir. 2012)

(citation omitted). When a party does not assert a specific

objection in the district court, as is the case with respect to the

imposition of the fine here, we review for plain error. See

United States v. Santiago, 466 F.3d 801, 803 (9th Cir. 2006). 

“A district court’s finding of whether a defendant is able to
10 UNITED STATES V. HERNANDEZ-ARIAS

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 Removal Order

An alien who “has been denied admission, excluded,

deported, or removed” commits a crime if the alien “enters,

attempts to enter, or is at any time found in, the United

States.” 8 U.S.C. § 1326(a). One method of violating

§ 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-Mendoza, 705 F.3d 1012, 1014–15 (9th Cir. 2013). 

“Congress has strictly limited an alien’s ability to bring a

collateral challenge to such an order. . . .” Vidal-Mendoza,

705 F.3d at 1014–15 (citation omitted). An alien facing

criminal charges may initiate a collateral attack on the

underlying order only if “(1) the alien exhausted any

administrative remedies that may have been available to seek

relief against the order; (2) the deportation proceedings at

which the order was issued improperly deprived the alien of

the opportunity for judicial review; and (3) the entry of the

order was fundamentally unfair.” 8 U.S.C. § 1326(d).

If the alien establishes a due process violation that

prevented his waiver of appeal from being knowing and

intelligent, he is excused from the exhaustion requirement. 

See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048

(9th Cir. 2004). Therefore, the crucial question in this case is

whether Hernandez-Arias has demonstrated a due process

violation and fundamental unfairness. Fundamental

unfairness “for purposes of § 1326(d)(3) [is demonstrated]

when the deportation proceeding violated the alien’s due
UNITED STATES V. HERNANDEZ-ARIAS 11

process rights and the alien suffered prejudice as a result.” 

United States v. Reyes-Bonilla, 671 F.3d 1036, 1043 (9th

Cir.), cert. denied, 133 S. Ct. 322 (2012) (citation omitted). 

Hernandez-Arias alleges three distinct due process violations

in his removal proceeding: (1) that he was not removable as

charged because he was “admitted” within the meaning of

immigration law when he was granted temporary resident

status; (2) that he was not informed of his potential eligibility

for a § 212(h) waiver; and (3) that he was not adequately

advised of his right to counsel. He contends that he suffered

prejudice from these violations because he was removed

when he should not have been or, alternatively, was removed

despite the availability of viable avenues for relief. None of

Hernandez-Arias’s arguments is persuasive.

1) Hernandez-Arias was removable as charged.

The government alleged in the NTA that Hernandez-Arias

was removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) for

being “[a]n alien present in the United States without being

admitted or paroled . . .” Hernandez-Arias was granted

temporary resident status in 1988 pursuant to the amnesty

provisions of the Immigration Reform and Control Act of

1986 (IRCA) (codified at 8 U.S.C. § 1255a).2IRCA created

a one-year window between 1987 and 1988 in which aliens

who unlawfully entered the United States before January 1,

1982, could obtain Lawful Permanent Resident (LPR) status. 

See 8 U.S.C. § 1255a(a)–(b). A two-step process was

involved. First, an alien was required to apply for temporary

residence. See id. § 1255a(a). Next, the temporary resident

had to file an application for adjustment to LPR status within

2 References to 8 U.S.C. § 1255A will be cited as § 1255a to be

consistent with citations in online reference sources.
12 UNITED STATES V. HERNANDEZ-ARIAS

forty-three months after adjustment of status to that of a

temporary resident. See id. § 1255a(b). Hernandez-Arias

completed the first step, but not the second.

The INA defines “admission” and “admitted” as “the

lawful entry of the alien into the United States after

inspection and authorization by an immigration officer.” Id.

§ 1101(a)(13)(A). This definition applies across the INA. 

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) . . . refers to a procedurally regular

admission and not a substantively lawful admission.” Hing

Sum v. Holder, 602 F.3d 1092, 1096 (9th Cir. 2010) (footnote

reference omitted). Thus, an alien is “admitted” pursuant to

§ 1101(a)(13)(A) when he undergoes the process of

“inspection and authorization by an immigration officer at the

port of entry”, id. at 1101, regardless of whether the alien

initially entered lawfully. See id. at 1099.

Because Hernandez-Arias was never inspected at the

border, he was not “admitted” as that term is defined in 

§ 1101(a)(13)(A). However, “both this court and the BIA, in

precedential decisions, have not limited the scope of

‘admitted’ to [§ 1101(a)(13)(A)’s]strict definition.” GarciaQuintero v. Gonzales, 455 F.3d 1006, 1015 (9th Cir. 2006). 

Certain events, such as adjustment to LPR status or

acceptance into the Family Unity Program (FUP), qualify as

“admission” for immigration purposes. See id. at 1018–19

(recognizing alien as “admitted in any status” upon

acceptance into the FUP); see also Ocampo-Duran v.

Ashcroft, 254 F.3d 1133, 1134–35 (9th Cir. 2001) (classifying

alien who entered without inspection as admitted upon

adjustment to LPR status). The BIA considers “[a]djustment

of status [as] essentially a proxy for inspection and
UNITED STATES V. HERNANDEZ-ARIAS 13

permission to enter at the border, which is given as a matter

of administrative grace. . . .[The BIA has] consistently

construed an adjustment of status as an ‘admission. . . .’” In

re Koljenovic, 25 I & N Dec. 219, 221 (BIA 2010). 

According to the BIA, “adjustment applicants are to be

treated as if they are being ‘admitted.’. . .” Id.; see also In re

Alyazji, 25 I & N Dec. 397, 404 (BIA 2011) (declining the

invitation from the Department of Homeland Security to

redefine the term “‘admission’ on a case-by-case basis” and

concluding that “adjustment of status constitutes an

admission”).

It could be persuasively argued that admission to

temporary residency qualifies as an “admission.” The

relevant statutory text includes the word “admitted,”

providing that “[t]he Attorney General shall adjust the status

of an alien to that of an alien lawfully admitted for temporary

residence [if the applicant fulfills certain requirements].” 

8 U.S.C. § 1255a(a) (emphasis added). And, as with lawful

admission for permanent residence, lawful admission for

temporary residence involves the statutory fiction of an

administrative “inspection” by immigration officials coupled

with legal permission to remain in the United States. See

Koljenovic, 25 I & N Dec. at 221. Our logic in OcampoDuran also suggests that the grant of lawful temporary

resident status should constitute an admission. See OcampoDuran, 254 F.3d at 1135 (equating the privilege of lawfully

residing in the countrywith an admission);see also Lawrence

v. Holder, 717 F.3d 1036, 1040 (9th Cir. 2013) (deferring to

the Attorney General’s interpretation of INA § 212(c)

defining “admissions” as encompassing applications for

§ 212(c) relief). Without deciding the issue, we assume that

adjustment to temporary resident status pursuant to

§ 1255a(a) is an “admission” under the immigration laws.
14 UNITED STATES V. HERNANDEZ-ARIAS

We need not definitively resolve whether HernandezArias’s adjustment to temporaryresident status constituted an

admission because, even if it did, termination of that status

operated to revoke any prior admission. Hernandez-Arias’s

1989 convictions rendered him statutorily ineligible for

further participation in the amnesty program, and his

temporary resident status was terminated by the Immigration

and Naturalization 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 status of any alien previously adjusted to lawful

temporaryresidence under section 245a(a) of the Act shall act

to return such alien to the unlawful status held prior to the

adjustment, and render him or her amenable to exclusion or

deportation proceedings under section 236 or 242 of the Act,

as appropriate.” Once Hernandez-Arias’s temporary resident

status was terminated, by operation of the governing

regulation, he automatically reverted to his prior unlawful,

unadmitted status.3

3 Our review in this case is confined to the operation of IRCA and its

unique implementing regulations. Our disposition of this case does not

contradict Hing Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010), which

holds that the word “admission,” either at the border or through

adjustment ofstatus or some other administrative process, generally refers

to a procedural event rather than a substantive status. Id. at 1096; see also

id. at 1099–1101 (tracing the evolution of the statutory definition of

“admission”). Just as Congress had authority to adopt an admission-based

removal system over an entry-based deportation system in the Illegal

Immigration and Immigrant Responsibility Act of 1996, so too did it have

the authority to dictate the specific contours ofIRCA’s temporary resident

provisions, which include an adjustment of status process (and a

regulatory definition of “admission”) unknown elsewhere in immigration

law. Accordingly, we limit the effect of our holding and our discussion

of rescission and termination of status to those admissions arising under

the provisions for adjustment to lawful temporary resident status

authorized by 8 U.S.C. § 1255a(a) and implemented at 8 C.F.R. § 245a.2.
UNITED STATES V. HERNANDEZ-ARIAS 15

Hernandez-Arias’s contention that he retained the benefits

of his adjustment to temporary residence despite termination

of that status lacks textual support in the applicable

regulation. Were 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 § 245a.2(u)(4) (emphasis added). The

regulation also specifies that termination of status rendered

Hernandez-Arias subject to removal under sections 236

(exclusion) or 242 (deportation) of the INA. See id.

Fairly read, 8 C.F.R. § 245a.2 describes a limited form of

status with no lasting immigration benefit. The regulation

specifically provides that “[a]n alien whose status is adjusted

to that of a lawful temporary resident under section 245a[4] of

the Act is not entitled to . . . any . . . benefit or consideration

accorded under the Act to aliens lawfully admitted for

permanent residence.” 8 C.F.R. § 245a.2(v). To the extent

that “admission” is a lasting immigration benefit conferred

upon LPRs, see Ocampo Duran, 254 F.3d at 1134–35, similar

treatment of temporary residents is foreclosed under the

governing regulation.

Hernandez-Arias contends that terminating his admission

would effect a “rescission of status” in violation of 8 C.F.R.

§ 245a.2(u)(3), which provides that “the phrase termination

of status of an alien granted lawful temporary residence under

section 245a(a) of the Act shall not be construed to

necessitate a rescission of status as described in section 246

4 References to section 245a of the Act are to the statutory provisions

codified at 8 U.S.C. § 1255a. See 8 C.F.R. § 245a.2 (Headings).
16 UNITED STATES V. HERNANDEZ-ARIAS

of the Act,[5] and the proceedings required by the regulations

issued thereunder shall not apply.” However, we do not view

termination in this context to be analogous to rescission. The

difference between rescission and termination is one of

timing, similar to the difference between annulment and

divorce. The legal effect of an annulment is to return the

parties to the status of individuals who were never married to

each other. See Purganan v. Schweiker, 665 F.2d 269, 270

(9th Cir. 1982) (noting that generally annulment relates back

and “erase[s] the marriage and all its implications from the

outset”). A consequence of annulment is that none of the

benefits accumulated during the marriage is retained. See id. 

In contrast, a divorce severs the marital union as of the date

the divorce becomes final. See Steve Escalera, California

Marital Annulments, 11 J. CONTEMP. LEGAL ISSUES 153,

153–54 (1997) (“Whereas a divorce judgment dissolves an

existing marriage—according full legal recognition to the

marriage relationship between the date of its formation and

the date of termination of the marital status—an annulment

judgment is said to ‘relate back’ and erase the marriage and

all its implications from the outset.”). Any benefits accrued

during the duration of the marriage continue to exist after

divorce. See, e.g., Cal. Fam. Code § 760 (noting that property

acquired during the marriage is thereafter considered

community property).

Termination of Hernandez-Arias’s temporary resident

status is more akin to a divorce than to an annulment. The

government is not seeking to deprive Hernandez-Arias of any

benefits he may have accrued while residing in the United

5 References to section 246 of the Act are to the statutory provisions

codified at 8 U.S.C. § 1256. See 8 U.S.C. § 1256 (discussing rescission

of adjustment of status).
UNITED STATES V. HERNANDEZ-ARIAS 17

States. For example, if Hernandez-Arias were eligible for

cancellation of removal, he would be entitled to count all the

time he was present as a temporary resident toward the

physical presence requirement. See 8 U.S.C. § 1229b

(discussing the physical presence requirement for

inadmissible or deportable aliens). That would not be true if

Hernandez-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 when the alien was never

eligible for the adjustment granted); see also 8 C.F.R. § 246.1

(describing rescission procedure). Indeed, it is telling that the

immigration authorities have never contended that

Hernandez-Arias was ineligible for adjustment of status to

that of a temporary resident.

We need not and do not defer to the BIA’s unpublished,

one-judge decision in In re Castro-Valdez, 2012 WL 391158

(BIA 2012), finding “admitted” an alien whose adjustment of

status had been terminated. A one-member, non-precedential

order like this one is not entitled to deference under Auer v.

Robbins, 519 U.S. 452 (1997), as an interpretation of an

agency regulation, because it does not reflect the BIA’s

considered judgment on the question. 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

analysis and its cursory review of the regulation lacks

persuasive power.

For the reasons discussed, we conclude that HernandezArias’s removal as an alien “not admitted or paroled” as

alleged in the NTA was not “fundamentally unfair.” The

termination of his temporary resident status returned him to

the status of an inadmissible alien subject to removal.
18 UNITED STATES V. HERNANDEZ-ARIAS

2) Hernandez-Arias was not eligible for a § 212(h)

waiver.

6

When the record supports an inference that an alien in

removal proceedings is eligible for relief from removal, the

IJ must advise the alien of his eligibility for the potential

relief. See United States v. Arce-Hernandez, 163 F.3d 559,

563 (9th Cir. 1999), as amended. However, to establish

fundamental unfairness for failure to advise of potential

eligibility for relief, an alien must show prejudice in the form

of “plausible grounds for relief from deportation. . . .” Id.

Hernandez-Arias is foreclosed from demonstrating

prejudice because “INA § 212(h) does not provide relief for

aliens removed for illegal presence in the United States

without admission or parole in violation of 8 U.S.C.

§ 1182(a)(6)(A)(i),” the sole basis of Hernandez-Arias’s

removal. United States v. Ramos, 623 F.3d 672, 684 (9th Cir.

2010). For a § 212(h) waiver to be plausible, we would have

to conclude that Hernandez-Arias was not removable as

charged. See id. Because we have concluded that

termination of Hernandez-Arias’s temporary status returned

him to the status of an inadmissible alien, Hernandez-Arias

cannot demonstrate prejudice in the form of a plausible

ground for available relief. See Arce-Hernandez, 163 F.3d at

563.

 

6

 References to § 212(h) are to 8 U.S.C. § 1182(h).
UNITED STATES V. HERNANDEZ-ARIAS 19

3) Hernandez-Arias did not preserve his claim that

the IJ failed to advise him of his right to counsel

and/or obtain a valid waiver of the right to counsel.

For the first time on appeal, Hernandez-Arias argues that

his removal was fundamentally unfair because the IJ did not

individually advise him of his right to counsel or obtain a

valid waiver of the right to counsel.

“[A]n issue will generally be deemed waived on appeal if

the argument was not raised sufficiently for the trial court to

rule on it. . . .” Ruiz v. Affinity Logistics Corp., 667 F.3d

1318, 1322 (9th Cir. 2012) (citation omitted). In the district

court proceedings Hernandez-Arias sought dismissal of the

indictment solely on the ground that his temporary admission

precluded his removal. He never raised any challenge

predicated on the IJ’s alleged failure to properly advise him

of his right to counsel. We therefore consider this issue

waived on appeal.

4) Conclusion.

Because we conclude that Hernandez-Arias has not

demonstrated anydue process violation resulting in prejudice,

his order of removal was not “fundamentally unfair.” ReyesBonilla, 671 F.3d at 1043. Failure to prove “fundamental

unfairness” precludes a successful collateral attack on the

underlying removal order pursuant to § 1326(d). Id.; see also

United States v. Calderon-Segura, 512 F.3d 1104, 1108 (9th

Cir. 2008) (holding that the district court properly denied a

motion to dismiss an indictment because the prior removal

was not “fundamentally unfair” under § 1326(d)(3)). We

affirm the district court’s denial of Hernandez-Arias’s motion

to dismiss the indictment.
20 UNITED STATES V. HERNANDEZ-ARIAS

B. Reasonableness of the Fine

Hernandez-Arias argues that the district court’s

imposition of a below-Guidelines fine of $1,000 was

procedurally erroneous due to an inadequate explanation. 

Hernandez-Arias did not raise this specific objection before

the district court, and the record does not reflect an

understanding by the district court that Hernandez-Arias’s

general objection to his sentence covered the fine, see United

States v. Grissom, 525 F.3d 691, 695 (9th Cir. 2008), so we

review for plain error. See Santiago, 466 F.3d at 803. But

even if the error were preserved and we were to review for

reasonableness, 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 cases, except where the defendant establishes that he

is unable to pay and is not likely to become able to pay any

fine.” U.S.S.G. § 5E1.2(a). “The district court must consult

the Guidelines’ recommendation, the § 3553(a) factors, and

the 18 U.S.C. § 3572(a) factors to determine the

appropriateness of the imposition of a fine and its

amount. . . .” Orlando, 553 F.3d at 1239 (citation omitted). 

Although a district court must “explain the sentence”

sufficiently to permit meaningful review, an “[a]dequate

explanation not only derives from the judge’s pronouncement

of the sentence, but may also be inferred from the

[presentence report] or the record as a whole.” United States

v. Blinkinsop, 606 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 range for the fine was between $7,500 and

$75,000 for each count, but that Hernandez-Arias did not
UNITED STATES V. HERNANDEZ-ARIAS 21

have “the ability to pay that kind of fine.” Accordingly, the

judge imposed a $1,000 fine. Although the judge did not

explain at length his fine calculation, the amount imposed

mirrored the recommendation in the presentence report and

Hernandez-Arias voiced no objection. “At sentencing, the

court . . . may accept any undisputed portion of the

presentence report as a finding of fact[.]” Fed. R. Crim. P.

32(i)(3)(A). Evidence in the record of Hernandez-Arias’s

skill as an auto mechanic and car salesman supported an

inference that he had the ability to pay the fine amount. 

Given the lack of a showing of inability to pay the amount,

the imposition of a $1,000 fine was reasonably supported by

facts in the record. No further explanation was required. See

Orlando, 553 F.3d at 1240 (upholding the imposition of a fine

without requiring extensive explanation).

IV. Summary

The district court properly denied Hernandez-Arias’s

motion to dismiss the indictment charging him with

attempted reentry after a prior removal in violation of

8 U.S.C. § 1326. The removal order under which HernandezArias was deported was obtained in a manner that was

consistent with Hernandez-Arias’s due process rights. 

Hernandez-Arias was removable as an alien present in the

country without admission. Once Hernandez-Arias’s

temporary status was terminated, his status reverted to that of

an unadmitted alien subject to removal. The fine imposed by

the district court was reasonable.

AFFIRMED.
22 UNITED STATES V. HERNANDEZ-ARIAS

WATFORD, Circuit Judge, concurring:

I agree that Hernandez-Arias was properly removed in

2010 as “[a]n alien present in the United States without being

admitted or paroled.” 8 U.S.C. § 1182(a)(6)(A)(i). The

statutory phrase “present in the United States without being

admitted or paroled” describes a status, one that HernandezArias held after entering the country without inspection. 

Even if Hernandez-Arias lost that status when he obtained

lawful temporary residence, he regained that status when his

lawful temporary residence was terminated. If there were any

doubt on that score, the governing regulation resolves it. The

regulation states that termination of lawful temporary

residence “shall act to return such alien to the unlawful status

held prior to the adjustment,” 8 C.F.R. § 245a.2(u)(4), which

in Hernandez-Arias’ case was that of an alien “present in the

United States without being admitted or paroled.” I don’t

think we need to say anything beyond that to resolve this

issue.

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