United States v. Jose Hernandez-Ruiz ( 2018 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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
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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
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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.
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