United States v. Joaquin Hernandez-Navarro

MEMORANDUM

Defendant Joaquin Hernandez-Navarro (“Hernandez”) appeals from his conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1826 (a) and (b), by challenging the validity of his underlying deportation. We review the district court’s denial of a motion to dismiss de novo, United States v. Ramos, 623 F.3d 672, 680 (9th Cir.2010), and we affirm.

1. [A]n alien cannot collaterally attack an underlying deportation order if he validly waived the right to appeal that order.” Id. (quoting United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000)). A waiver of the right to appeal is valid if it is “considered and intelligent.” Id. The Immigration Judge (“IJ”) first advised Hernandez of his right to appeal in a group setting, and then asked him individually, after his hearing, if he wished to appeal. Hernandez declined to appeal. This procedure does not in itself violate the right to due process. United States v. Estrada-Torres, 179 F.3d 776, 781 (9th Cir.1999), overruled on other grounds by United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir.2001). Moreover, the isolated moments during the hearing when Hernandez did not understand a question or did not…