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

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

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

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

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SUMMARY *

C rim inal/Im m igration

The panel affirmed a criminal judg ment in a case in which the defendant contended that his c o n viction for attempted reentry after a prior removal was predicated on a removal order that was obtained in v iolation o f his due process rig hts.

The defendant’s challeng e centered o n whether a noncitiz en can be r emoved as an alien found in the United States without having been “a dmitted 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 erated to r e v o k e any “admission” resulting from the prior adjustment o f s tatus, rendering the defendant unadmitted and removable. B ecause the defendant’s removal order was n o t fundamentally unfair, the panel affirmed the district court’s denial of his motion to dismiss the indictment.

T h e panel deemed waived on appeal the defendant ’s claim that the immig rati o n j udg e failed to advise him of his rig ht to c ou n s e l a n d/or obtain a valid waiver of the rig h t to counsel.

The panel concluded that the fine i mposed was reasonable.

* 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

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Concurring

, J udg e W atford w rote that the panel need not say any thing b ey 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 a lien “present in the United States without being admitted or paroled.”

COUNSEL

Harini P. Rag hupathi, F ederal D efenders of San Dieg o, I n c., San Dieg o, California, for Defendant-Appellant.

L aura E. Duffy

, B ruce R. Castetter
, a nd Stephen P. Clark (arg ued), O ffice of the United States Attorney
, S an Dieg o, California, for Plaintiff-Appellee.

OP INION

RAW L I NSON, Circuit J udg e:

J o s e L uis Hernandez -Arias appeals the denial of his motion to dismiss the indictment charg ing h im with attempted reentry after a prior remov a l i n v iolation o f 8 U.S.C. § 1326. He arg ues that the con viction 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 e n 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 operatedU 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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to revoke any “ ad m i s sion” resulting from the prior adjustment of status, rendering Hernandez -Arias unadmitted and removable.

I. F actual Background

H e rnandez -Arias is a native and citiz en of Mex ico wh o entered the United States w ithout inspecti on in 1981. He is the father of two United Sta t e s citiz en children. He has worked in an auto body shop and as a car salesman.

Hernandez -Arias wa s g ranted temporary resident status in 1988 f o l l owing his application for a mnesty pursuant to 8 U.S.C. § 1255a(a). Th i s s t atus was revoked in 1991 on account of his 1989 conviction of f i v e c o unts of lewd a

nd lascivious acts on a child u n d e r the a g e of 14 in violation o f California Penal Code § 288(a)–(b ). Hernandez -Arias was

s entenced to six y ears in prison for each count, to be served concurrently

.

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

a leng thy inte r l ude, 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 theft an d s entenced to 120 day s in jail. Hernandez

- Arias was subsequently served with a Notice to Appea r (NTA) charg ing removability for being “an a lien present in the U nited States who has not been admitted or p aroled,” in v iolation of § 212(a)(6)(A)(i) of the I mmig r a tion and Nationality Act (I NA).

Hernandez -Arias a p p e a red p ro se at a g roup removal 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 attorne y , b u t at no ex pense to the g overnment.” T he I JU N I T E D S T A T E S V

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confirmed that each individual had received a list o f immig ration attorney s from the area and unde r s t ood their responsibility to contact such a t t o r ney s should they desire further a ssistance. The g roup collectively waived the rig ht to counsel. The I J also informed the gr o u p 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 nd voluntary departure. He d id n o t specifically mention the potential for relief under § 2 1 2 (h) of the I NA (waiver o f inadmissibility ).

Durin 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 f i l ed an application for adjustment o f status on his b ehalf in 2 0 01, but that they “never received any

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

The I J advised Hernande z -Arias of his uncertainty
reg arding whether Hernandez

- A rias “would be elig ible for a waiver o r not,” 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 note d t h a t Hernandez -Arias mig ht qualify for c ancellation of removal, but that such relief was doubtful g iven his criminal history

. I n any cas e , t h e I J

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

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

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some time to prepare his case, Hernandez -Arias declined a nd said that he d i d not 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 Dece m b e r 9, 2010, Hernandez -Arias a p p l i ed for entry into the United States at the San Y sidro Port o f Entry using a f raudulent passport a

nd visa. Pos t -arrest, Hernandez -Arias a dmitted to immig r ation
ag ents that he had previously been deported a n d l acked lawful status.

The g overnment filed a three-count indictment ag ainst Hernandez -Arias, charg ing : (1) at t e mpted reentry after a pr i o r deportation in violation of 8 U.S.C. § 1326, (2) fraud and misuse of reentry documents in v i o l a t i o n of 18 U .S.C. § 1546(a), and ( 3) ag g ravated identity theft in viol a tion 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 meaning of the immig r ation
statute s w hen he was g ranted temporary resident status. Hernandez -Arias also conten d e d that his r emoval hearing was fundamentally unfair because the I J had not advised him o f h i s p otential elig ibility for § 212(h) relief. The g overnment opposed the motion, arg uing that Hernandez -Arias’s removal comported with due process and t h at Hernandez -Arias h ad failed to ex haust available administrative remedies.

The d istrict court denied Hernandez -Arias’s motion to dismiss. I t concluded t h at Hernandez -Arias was properly removed under 8 U.S.C. § 1182(a)(6)(A)(i) as an alie n w ho had not been admitted, because adjustment to t e mporaryU N I T E D S T A T E S V

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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 Hernandez -Arias had been admitted as a t em p o rary resident, the termination of his temporary residency operated
t o r eturn him to his prior unadmitted status pursuant t o 8 C.F .R. § 245a.2(u)(4). The court further h e l d t hat Hernandez -Arias was not pr ej udiced by the I J ’s failure to advise him of the availability o f prospective reli e f u nder § 212(h) because H ernandez -Arias was statutorily inelig ible for that r elief. As Hernandez

- Arias failed to demonstrate a du e process violation 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 avated ide n t i t y theft charg e. The district court imposed

a within-Guidelines sentence o f 4 1 months’ imprisonment. The c ourt noted that the Guidelines range f o r the fine was $ 7
, 5 0 0 to $75,000 for each count, b ut r ecog niz ed that Hernandez -Arias did not have “the a bility to pay that k ind o f fine.” According ly

, the judg e ordere d p a y ment of a $1,000 fi n e in installments. The fine amount and pay ment p lan mirrored the recommen d a tion in the Presentence Report, which provided n o d etails reg arding Hernandez

- A rias’s ability to p ay

. Hernand ez -Arias objected to the procedural and substantive reason a b l e ness of his sentence, 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 d i smiss an indictment under 8 U.S.C. § 1326 when the motion is b ased on a

n alleg ed deprivation of due p rocess inU N I T E D S T A T E S V

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the underly ing re m o v a l p roceeding s.

. . .” United States v

. Valdavinos-Torres

, 704 F .3d 679, 6 85 (9th Cir. 2 012) (citati o n o m itted). W h en a party does not assert a specific objection in the district court, as is the case with respect to the i mposition of the fine here, we review for plain error. S e e United States v. Santiago
, 4 66 F .3d 801, 803 (9th Cir. 2006). “A district cour t ’ s f

i n d ing of whether a defendant is able to pay [ a] fine is reviewed for clear e rror.

. . .” United S tates v

. Orlando

, 553 F .3d 1235, 1240 (9th Cir. 2009).

III. Analysis

A. Collateral Challenge to Rem oval Order

An alien who “has been deni e d a d mission, ex cluded, deported, o r removed” commits a crime if the alien “ e n t e r s, attempts to enter, or is at any time f o und in, the United States.” 8 U.S.C. § 1326(a). One metho d 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-M e n doza

, 705 F .3d 1012, 1 014–15 (9th Cir. 2013). “Cong ress has strictly limited an a l i en’s ability to bring a collateral challeng e to su c h an o rder.

. . .” Vidal-Mendoza

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

c r iminal charg es may initiate a collateral attack on the underly ing o r d er only if “(1) the alien ex hausted any administrative remedies that may have been available to seek

re l i e f ag ainst the order; (2) the deportation 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 alien establis h e s a due process violation that prevented his waiver of appeal from being knowing a ndU N I T E D S T A T E S V

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intellig ent, he is ex cused from the ex h au s tion requirement. See United States v. Ubaldo-Figueroa

, 3 64 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 of § 1326(d)(3) [ is demonst r a t e d ] whe n the deportation proceeding v iolated the alien’s d ue process ri g hts and the alien suffered prejudice as a result.” United St a t es v

. Reyes-Bonilla

, 671 F .3d 1036, 1043 (9th Cir.), cert. d

enied

, 133 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 l aw when 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 counsel. He contends that he suffered prejudice from these v iolations 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 arg

uments is persuasive.

1) Hernandez-Arias was removable as charged

.

The g overnment alleg ed in the NTA t h a t H e r n a ndez -Arias

was removable p ursuant to 8 U .S.C. § 1182(a)( 6 )(A)(i) for being “ [ a] n alien present in the U nited States without being admitted or paroled

. . .” Hern andez -Arias was g ranted temporary resident status in 1 988 p ursuant to th e amnesty provisions o f the I mmig ration Reform and C o n trol Act o f 1986 (I RCA) ( codified at 8 U.S.C. § 1255a). 2 I RCA created

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

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a one-y ea r w indow between 1987 and 1988 in which a liens

w ho unlawfully entered the United 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

. § 1 2 5 5 a(a). N ex t, the temporary resident had to f ile an application for adjustment to L PR status within forty -three months after adjustment of status to t h a t o f a temporary resident. See id

. § 1 2 5 5a(b). Hernandez -Arias completed the first step, but not the second.

The I N A defines “admission” and “ a d m i tted” as “the lawfu l e n t ry of 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 the I NA. See id

. § 1101(a) (defining terms “[ a] s used in this chapter”). “[ T] he plain meaning o f the term ‘admission’ in § 1101(a)(13)(A)

. . . r efers to a p rocedurally reg ular admission and not a substantively lawfu l a d m i ssion.” 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 underg oes the process o f “inspection and authoriz ation by an immig ration officer at the port of entry ”, id. at 1101, r eg a rdless of whether the alien initially entered lawfully

. See id . at 1099.

B e cause H ernandez

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

, 4 55 F. 3d 1006, 1015 (9th Cir. 2006). C e r t ai n events, such as adjustment to L PR status o r acceptance into the F amily Unity Prog ram (F UP), qualify

asU N I T E D S T A T E S V

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“admission” for immi gr at ion purposes. See id. at 1018–19 (recogn i z ing alien as “admitted in any status” upon

a c c eptance into the F UP); see also Ocampo-Duran v. Ashcroft

, 254 F .3d 1133, 1134–35 (9th Cir. 2001) (classify ing alien who e ntered without inspecti o n a s admitted upon adjustment to L PR status). The B I A considers “[ a] djustment

o f s tatus [ as] essentially a prox y for inspection a n d permissio n t o enter at the border, which is g iven a s a matter of admini s t r a t i ve g race.

. . .[ The B I A has] consistently construed an adjustment of status as an ‘admission.

. . . ’” I n

re Koljenovic

, 2 5 I & N Dec. 219, 221 ( B I A 2010). A c c ording to the B I A, “adjustment applicants are to b e treated as if they are being ‘admitted.’.

. .” Id .; see also In re Alyazji

, 25 I & N Dec. 397, 404 ( BI 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 “adjustment of status con s t i t u tes an admission”).

I t could be persuasiv e l y a r g u ed that admission to temporary residency q u a l ifies as an “admission.” The relevant statutory tex t incl u des the word “admitted,” providing that “[ t] he Attorney General shall a djust the status of an a lien to that of an alien lawfully admitted for temporary residence [ if the a pplicant fulfills certain requirements]

. ” 8 U.S.C. § 1 255a(a) ( emphasis a d d ed). And, as with lawful admission for permanent res i d e nce, lawful admission for temporary residence involves the statutory fiction of an administrative “inspection” b y immig ration officials coupled with leg al permission to r e m ain in the United States. See Koljenovic

, 25 I & N Dec. a t 2 2 1. Our log ic in O c a m p o

Duran also sug g ests that the gr a n t of lawful temporary resident status should constitute an admission. See OcampoD uran , 254 F .3d at 1135 (equating the p rivileg e of lawfu l l yU N I T E D S T A T E S V

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residing in the c ountry with an a dmission); see also Lawrence v. Holder

, 717 F .3d 1036, 1 040 (9th Cir. 2013) (deferring to the Attorney Gen e r a l ’ s interpretation of I NA § 212(c) defining “admissions” as e ncompassing applications f o r § 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.

W e n eed n ot d efinitively resolve whether Herna n d e z

Arias’s a djustment to temporary r esident status constituted an admission because, even if it d id, termination of t h at status operated to revoke any prior admission. Hernandez -Arias’s 1989 convictions rend e r ed him statutorily inelig ible for further p a rticipation in the amnesty prog ram, 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 status of any alien previousl y a d justed to lawful temporary residence under section 2 45a(a) of the Act shall act to return such alien to the unlawful status hel d p r i or to the adjustment, and render him o r her a me n able 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 au t o matically reverted to his prior unlawful, unadmitted

status.

Hernandez -Arias’s contention t h a t h e r e t a i n e d t

h e b enefits of his adjustment to temporary residence despite termination of that status l a c k s t ex tual support in the applicable
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 h e ld prior to the adjustment.” 8 C.F .R § 2 45a.2(u)(4) (emphasis added). TheU N I T E D S T A T E S V

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r e gulation also specifies that termination of status rende r e d Hernand e z -Arias subject 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
status with no lasting immig ration benefit. The reg ulation specifically provides that “[ a] n alien whose status is adjusted
to that of a lawful temporary r esident under section 245a[ 3 ] o f the Act is not entitled to .

. . any . . . benefit or consideration accorded u nder the Act to aliens lawfu lly admitted for permanent residence.” 8 C.F .R. § 245a.2(v). To the ex tent that “ a dmission” is a lasting immig ration benefit conferred
upon L PRs, see Ocampo Duran
, 254 F .3d at 1134–35, similar
treatment of temporary r e s i dents is foreclosed under the
g overning reg ulation.

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 p h r ase termination of status o f an alien g ranted lawful temporary residence under section 245a(a) of the Act shall n ot be construed to necessitate a rescission of status as d escribed in section 246 of the Act,[ 4 ] 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

3 Ref eren c e s t o sectio n 2 45 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).

4 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

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divorce. The leg al effect of an a nnu l ment is to return the parties to the status of individuals who were never married to each other

. See Purga nan v. S chweiker

, 665 F

. 2d 269, 270 (9th Cir. 1982) (noting that g enerally annulment relates back

a n d “erase[ s] the marriag e and a ll its implications from t h e outset”). A consequence o f an n ulment is that none of the benefits accumulated during the marriag e is retained. See id

. I n contrast, a divorce severs the mari t al union as of the date the divorce becomes final. S ee Steve Escalera, California Marital Annulmen t

s , 11 J

. C O N T E M P

. L E G A L I S S U E S 153, 15 3

– 54 (1997) (“W hereas a divorce judg ment dissolves an

ex isting marriag e—according full leg al recog nition to the

m a r r i a ge relationship between the d ate of its formation a nd the date of termination of the marital statu s

— a n annulment judg men t i s said to ‘relate back’ and e r ase the 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

a c q u ired d

u ring the marriag e is thereafter considered community

property ).

Termination of H ernandez -Arias’s temporary resident
status is more akin to a divor ce than to an annulment. The
g overnment is not seeking to deprive Hernandez -Arias of any benefits he may have a ccrued while residing i n the United States. F or ex ample, if Hernand ez

- Arias were elig ible for cancellation of removal, h e would be entitled to count all the ti m e he w as present as a temporary resident toward the phy 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 al 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 deportable aliens). That would not be true if Hernandez -Arias’s stat u s had been rescinded. See Kim v

. Me e s e , 810 F .2d 1494, 1497 (9th Cir. 1987) (noting that rescission of status is appropri a t e when the alien was neverU N I T E D S T A T E S V

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elig ible for the adjustment g ranted); see also 8 C.F .R. § 246.1 (describing rescission procedure). I ndeed, it is telling that the immig ration authorities ha v e n e v e r c o n t e n ded that H ernandez -Arias was inelig ible for adjustment of statu s t o that of a temporary

resident.

W e need n ot and d o n ot defer 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” a n alien whose adjustment o f
status h ad been terminated. A o ne-member, n on-precedential order like t h i s one is not entitled to deference under Auer v

. Robbins

, 5 19 U.S. 4 5 2 ( 1 9 9 7), as a n interpretation o f an ag ency reg ulation, be c ause it d oes n ot reflect the B I A ’s considered judg ment on the question. See Go v. Holder

, No. 11-73272, __F .3d__ n .1 (9th Cir. 2014) (citing LezamaGa r cia 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 review of th e r e g ulation lacks persuasive power.

F or the r easons discussed, we conclude that Hernandez

Arias’s removal as an alien “ n o t admitted or par o l e d ” a s alleg ed i n the NTA was not “fundamentally unfair.” The termination o f his tem p o r a r y r e sident status returned h im to the status of an inadmissible alien subject to removal.

2) Hern andez-Arias was not eligible for a § 212( h) waiver

. 5

W h en the record supports an inference that an alien in removal proceeding s is elig ible f or relief from removal, the I J must advise the alien o f h i s elig ibility for the potential

5 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

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relief. S ee United States v. A rce-He r n a n d ez , 163 F .3d 559, 563 (9th Cir

. 1 9 9 9 )

, as amended

. However, to establish fundamental unfairness f o r failure 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

.

Hernandez -Arias is f

oreclosed from d emonstrating prejudice becaus e “I

NA § 212(h) does not provide relief for aliens re m oved for illeg al presence in the United States without admissio n o r p a role in violation of 8 U .S.C. § 1182(a)(6)(A) ( i ),” the sole b asis of Hernandez -Arias’s removal. United States v. Ramos
, 623 F

. 3d 672, 684 ( 9th Cir. 2010). F or a § 212(h) waiver to b e plausible, we would have
to conclu de that Hernandez -Arias was not removable a s charg ed. See id. B ecause we have c o ncluded that termination o f Hernandez -Arias’s temporary status r eturned him to the status of an inadmissible alien, H ern a ndez -Arias
cannot demonstrate prejudice in the f orm of a plausible
g round for available r elief. See A rce-Hernandez

, 1 63 F .3d at 563.

3) Hernandez-Arias did not prese r v e his c laim that the IJ failed to a d

v i s e him 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 court to rule on it.

. . .” Ruiz v. Affinity Logistics Corp.
, 667 F .3d 1318, 1322 (9th Cir. 2012) (citation omitted). I n the districtU 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

court proceeding s He rn andez -Arias soug ht dismissal of the indictment solely on the g round that his temporary admission precluded h is re moval. He never raised any challeng e predicated o n the I J ’s alleg ed failur e t o properly advise him of his rig ht to c ounsel. W e therefore consider this i s sue waived on appeal.

4) Conclusion

.

B e cause we conclude that H ernandez -Arias h as n ot demonstrate d a

n y d u e process violation resulting in prejudice, his order of removal w as not “fundamentally unfair.” ReyesBonilla

, 671 F .3d at 1043. F ail u r e t o prove “fundamental

u n f a irness” precludes a successful collateral attack on t h e underly ing r emoval order pursuant to § 1326(d). Id .; see also United States v

. Calderon-Segura

, 512 F .3d 1 104, 1108 (9th Cir. 20 0 8 ) ( holding that the district court properly denied a motion to dismiss an indictment becau se the prior removal

was not “fundamentally u n fair” under § 132 6 ( d ) ( 3 )). W e affirm the district court’s denial of Hernandez -Arias’s motion to dismiss the indictment.

B. Reasonableness of

the F ine

Hernandez -Arias arg u es that the district c o urt’s imposition o f a b elow-Guidelines fine of $ 1,000 was procedu r ally erroneous due to an inadequate ex p lanation. He r n a n d ez -Arias did not raise this specific objection before the distr i ct c ourt, and the record does not reflect an understanding by the distric t court that Hernandez -Arias’s
g eneral objection to his sentence covered the fine, see United Sta t e s v. G r issom
, 525 F .3d 691, 695 (9th Cir. 2008), so we review for plain error. See Santiago
, 4 6 6 F

. 3 d at 803. B ut

even if the error were p r e s e r v e d a nd we were to review forU N I T E D S T A T E S V

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I A S 18

reasona b l e n ess, see Orlando

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

Under the Guidelines, a d istrict court must impose a fine “in all cases, ex cept w here th e d efendant 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 § 3553(a) fact o rs , a nd the 18 U.S.C. § 3572(a) f a ct o r s to determine the appropri at e ness of the imposition o f a fine and its
amount.

. . .” Orlando

, 5 53 F .3d a t 1239 (citati o n o m i tted). Althoug h a district court must “ ex plain the s e n t ence” sufficiently to permi t m e a n ing ful review, an “[ a] dequate

ex p lanation not only derives from the judg e’s pronouncement of the sentence, but may al s o b e 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 that Hernandez -Arias d id not have “the ability to pay that kind of fine.” According ly

, the j u d g e imposed a $ 1 ,000 fine. A lthoug h the judg e d id n o t

ex p lain at leng th his f

ine calculation, the amount imposed mirrored the r ecommendation in the presentenc e r eport a nd Hernandez -Arias v o iced n o objection. “At sent encing

, the
court

. . . may accept any 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 ability to pay the fine a m o u n t

. G i v en the lack of a showing of inability to pay the amount, the imposition of a $1,000 fine w as reasonably supported b yU 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

facts in the r ecord. No further e x 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 district court properly d enied H ernandez -Arias’s motion to dismiss the i ndictment charg ing him with attempted reentry after a prior removal in viol at i o n o f 8 U.S.C. § 1326. The removal order u nder which Hernandez

Arias was deported was obta i n e d in a manner that was consistent with Hernandez -Arias’s due proces s r ig hts. Hernandez -Arias was r em o vable as a n alien present in the country with o u t admission. O nce Hernandez -Arias’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.

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

I a g ree that H ernandez -Arias was properl y r e moved 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 “ p re s ent in the United States without being admitted or paroled” describes a status, one that Hernandez

Arias h e ld after entering the country without inspection. Even if H e r nandez -Arias lost that status when he obtained lawful temporary residence, he reg ained that status when his lawful temporary residence was terminated. I f there were any doubt on that score, the g o verning reg ulation resolves it. TheU 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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reg ulation states that termin a t i on 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 paroled.” I d o n ’t think we need to say a

n y t h i n g bey ond that to resolve this issue.

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