United States v. Jose Hernandez-Ruiz

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 30, 2018
• Docket: 17-3909
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0165n.06

Case No. 17-3909

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED Mar 30, 2018 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE SOUTHERN DISTRICT OF JOSE HERNANDEZ-RUIZ, ) OHIO ) Defendant-Appellant. ) )

BEFORE: GUY, SUTTON, and COOK, Circuit Judges.

SUTTON, Circuit Judge. The Government charged Jose Hernandez-Ruiz with illegally

re-entering the United States after being removed. 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 admission 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, and 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 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. Martinez-

Rocha, 337 F.3d 566, 569 (6th Cir. 2003).

Aliens have ample ways to challenge removal orders and related proceedings at the time

they occur. But their ability to challenge a removal order in a subsequent criminal prosecution is

circumscribed by 8 U.S.C. § 1326(d). Here is what it says:

(d) LIMITATION ON COLLATERAL ATTACK ON UNDERLYING DEPORTATION ORDER In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) or subsection (b) unless the alien demonstrates that— (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.

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 admitted or paroled” and waived “the right to have

a hearing before an Immigration Judge” and “the right to appeal the Immigration Judge’s written

order of removal.” R. 36 at 4, 8, 11. This waiver precluded Hernandez-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 William Belanich interviewed Hernandez-Ruiz in 2011. Belanich

speaks Spanish and uses it regularly during removal proceedings. In conducting removal

2 Case No. 17-3909 United States v. Hernandez-Ruiz interviews, he first determines whether the detainee speaks Spanish, and he began this interview

by doing that. Hernandez-Ruiz speaks Spanish.

Belanich handed Hernandez-Ruiz a notice of rights written in Spanish informing him that

he could (1) request a hearing before an immigration judge, (2) assert a claim of fear in front of

an immigration court, or (3) admit that he was removable and waive any hearing. Hernandez-

Ruiz read the document and chose the third option.

Belanich gave Hernandez-Ruiz a list of free legal service providers and a notice to

appear, a formal allegation of a violation of immigration laws. Hernandez-Ruiz read the notice

and signed it. Hernandez-Ruiz received a notice of custody determination, which he read and

signed, indicating that he did not request a redetermination of his custody decision.

Belanich gave Hernandez-Ruiz the stipulation of removal, which explained (in English

and Spanish) the rights he would waive by admitting that he was removable. Hernandez-Ruiz

told Belanich that he read the Spanish version 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 the stipulation and signed the document. On this

record, Hernandez-Ruiz waived these 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 and willingly waive the

right to appeal”) of the stipulation aloud. R. 36 at 9, 11. But this argument misunderstands the

goal of the recitation exercise. The point is to ensure that the detainee can read and understand

the agreement, not to ratify discrete provisions. Besides, paragraphs 6 and 14 largely duplicate

paragraph 5, which states that “by signing this Stipulation, I will be giving up . . . the right to

3 Case No. 17-3909 United States v. Hernandez-Ruiz 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 have asked about his educational 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 writing alike. A knowing waiver requires no more.

Hernandez-Ruiz insists that we should invalidate the waiver because he did not have the

assistance of a lawyer. But Hernandez-Ruiz remained free to call a lawyer during the interview,

and Belanich gave him a list of free legal services before he agreed to the stipulation.

Hernandez-Ruiz offers no authority for the proposition 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.