United States v. Joe Hernandez-Arias

discussion of rescission and termination of status to those admissions arising under the provisions for adjustment to lawful temporary resident status authorized by 8 U.S.C. § 1255a(a) and implemented at 8 C.F.R. § 245a.2.

With this amendment, the panel votes to deny the Petition for Rehearing En Banc.

UNITED STATES V. HERNANDEZ-ARIAS

The full court has been advised of the Petition for Rehearing En Banc, and no judge of the court has requested a vote on it.

The Petition for Rehearing En Banc, filed on May 5, 2014, is DENIED. No additional petitions for rehearing will be entertained.

OPINION

RAWLINSON, Circuit Judge:

Jose Luis Hernandez-Arias appeals the denial of his motion to dismiss the indictment charging him with attempted reentry after a prior removal in violation of 8 U.S.C. § 1326. He argues that the conviction was predicated on a removal order that was obtained in violation of his due process rights. Hernandez-Arias’s challenge centers on whether a non-citizen can be removed as an alien found in the United States without having been “admitted or paroled” where the alien adjusted to temporary resident status, but that status was later terminated.…

concurring:

I agree that Hernandez-Arias was properly removed 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 “present in the United States without being admitted or paroled” describes a status, one that Hernandez-Arias held after entering the country without inspection. Even if Hernandez-Arias lost that status when he obtained lawful temporary residence, he regained that status when his lawful temporary residence was terminated. If there were any doubt on that score, the governing regulation resolves it. The regulation states that termination of lawful temporary residence “shall act to return such alien to the unlawful status held prior to the adjustment,” 8 C.F.R. § 245a.2(u)(4), which in Hernandez-Arias’ case was that of an alien “present in the United States without being admitted or paroled.” I don’t think we need to say anything beyond that to resolve this issue.

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

Order; Opinion by Judge RAWLINSON; Concurrence by Judge WATFORD.

ORDER

The opinion filed on March 21, 2014 is hereby amended as follows:

Following page 12, first full paragraph, the following footnote is appended:

3Our review in this case is confined to the operation of IRCA and its unique implementing regulations. Our disposition of this case does not contradict Hing Sum v. Holder, 602 F.3d 1092 (9th Cir.2010), which holds that the word “admission,” either at the border or through adjustment of status or some other administrative process, generally refers to a procedural event rather than a substantive status. Id. at 1096 ; see also id. at 1099-1101 (tracing the evolution of the statutory definition of “admission”). Just as Congress had authority to adopt an admission-based removal system over an entry-based deportation system in the Illegal Immigration and Immigrant Responsibility Act of 1996, so too did it have the authority to dictate the specific contours of IRCA’s temporary resident provisions, which include an adjustment of status process (and a regulatory definition of “admission”) unknown elsewhere in immigration law. Accordingly, we limit the effect of our holding…