NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0165n.06
Case No. 17-3909
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JOSE HERNANDEZ-RUIZ, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: GUY, SUTTON, a nd COOK, Circuit Judges. SUTTON, Circuit Judge. The Government ch arged Jose Hernandez-Ruiz with illegally re-entering the United States after being remove d. He challenges the admission of his removal order into the criminal proceedings. Because Hernandez-Ruiz knowingly and voluntarily agreed to a stipulation of removal, we affirm the ad mission of his removal order and his conviction. The United States deported Jose Hernandez-Ruiz in March 2011. In September 2016, the Government found him in Miami County, Ohio, a nd charged him with illegally reentering the country. 8 U.S.C. § 1326(a). Hernandez-Ruiz moved to suppress the removal order before his criminal trial. The district court denied the motion, finding that Hernandez-Ruiz signed a stipulation of removal “with full knowledge of his ability to seek counsel or exercise the rights he was giving up.” R. 24 at 8. Hernandez-Ruiz entered a conditional guilty plea that preserved his right to appeal the decision.Case No. 17-3909 United States v. Hernandez-Ruiz

2 We give fresh review to Hernandez-Ruiz ’s challenge to his deportation order. United States v. Zuniga-Guerrero , 460 F.3d 733, 735 (6th Cir. 2006). In doing so, we defer to the district court’s factual findings as long as they are not clearly wrong. United States v. MartinezRocha , 337 F.3d 566, 569 (6th Cir. 2003). Aliens have ample ways to challenge remova l orders and related proceedings at the time they occur. But their ability to challenge a removal order in a s ubsequent criminal prosecution is circumscribed by 8 U.S.C. § 1326(d) . Here is what it says: (d) L IMITATION ON C OLLATERAL A TTACK ON U NDERLYING D EPORTATION O RDER In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsect ion (a)(1) or subsection (b) unless the alien demonstrates that— (1) the alien exhausted any administrativ e remedies that may have been available to seek relie f against the order; (2) the deportation proceedings at whic h the order was issued improperly deprived the alien of the opport unity for judicial review; and (3) the entry of the order wa s fundamentally unfair. Hernandez-Ruiz agreed, at the time of his March 2011 removal, that he was “an alien present in the United States who has not been adm itted or paroled” and waived “the right to have a hearing before an Immigration Judge” and “the ri ght to appeal the Immi gration Judge’s written order of removal.” R. 36 at 4, 8, 11. This wa iver precluded Hernande z-Ruiz from exhausting administrative remedies, and § 1326(d) prevents him from obtaining collateral relief today. That leaves one option: He may invalidate the waiver on the ground that he did not make it knowingly and voluntarily. Martinez-Rocha , 337 F.3d at 569. But he cannot clear that bar. The evidence shows that Hernandez-Ruiz executed a valid waiver . Immigration and Customs Enforcement Officer W illiam Belanich interviewed Hernandez-Ruiz in 2011. Belanich speaks Spanish and uses it regularly during removal proceedings. In conducting removalCase No. 17-3909 United States v. Hernandez-Ruiz

3 interviews, he first determines whether the deta inee speaks Spanish, and he began this interview by doing that. Hernandez-Ruiz speaks Spanish. Belanich handed Hernandez-Ruiz a notice of ri ghts written in Spanish informing him that he could (1) request a hear ing before an immigration judge, (2) as sert a claim of fear in front ofan immigration court, or (3) admit that he was removable and waive any hearing. HernandezRuiz read the document a nd chose the third option. Belanich gave Hernandez-Ruiz a list of fr ee legal service providers and a notice to appear, a formal allegation of a violation of i mmigration laws. Hernand ez-Ruiz read the notice and signed it. Hernandez-Ruiz received a notice of custody de termination, which he read and signed, indicating that he did not request a redetermination of hi s custody decision. Belanich gave Hernandez-Ruiz the stipulati on of removal, which explained (in English and Spanish) the rights he would waive by admitt ing that he was remova ble. Hernandez-Ruiz told Belanich that he read the Spanish versi on of the stipulation. In an abundance of caution, Belanich asked Hernandez-Ruiz to recite paragraphs 2, 3, 5, and 10 of the stipulation aloud. He did so. Hernandez-Ruiz initialed each page of th e stipulation and signed the document. On this record, Hernandez-Ruiz waived thes e rights knowingly and voluntarily. Hernandez-Ruiz faults Belanich for not making him read paragraphs 6 (“I do not want to have a hearing before an Immigration Judge”) and 14 (“I knowingly a nd willingly waive the right to appeal”) of the stipul ation aloud. R. 36 at 9, 11. But this argument mi sunderstands the goal of the recitation exercise. The point is to ensure that the detainee can read and understand the agreement, not to ratify di screte provisions. Besides, pa ragraphs 6 and 14 largely duplicate paragraph 5, which states that “by signing this S tipulation, I will be giving up . . . the right toCase No. 17-3909 United States v. Hernandez-Ruiz

4 have a hearing before an Immigration Judge [and] the right to appeal the Immigration Judge’s decision.” Id. at 8–9. Hernandez-Ruiz recited paragraph 5. Hernandez-Ruiz adds that Belanich should ha ve asked about his e ducational background. That may well be a reasonable approach if the detainee seems confused or lost. But no evidence shows any such thing happened. So far as the record shows, Belanich took numerous steps to ensure that Hernandez-Ruiz could read and understand the stipulation, and Hernandez-Ruiz confirmed that he did, through speech and wri ting alike. A knowing waiver requires no more. Hernandez-Ruiz insists that we should invalid ate the waiver because he did not have the assistance of a lawyer. But Hern andez-Ruiz remained free to call a lawyer during the interview, and Belanich gave him a list of free legal servic es before he agreed to the stipulation. Hernandez-Ruiz offers no authority for the propositio n that a lawyer still must be on the scene in a setting with no “contemplation of any kind of criminal case.” R. 19 at 63. Nor can we come up with one on our own. We affirm.