FILED
NOT FOR PUBLICATION AUG 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50306
Plaintiff - Appellee, D.C. No. 3:10-cr-05085-JAH-1
v.
MEMORANDUM *
SABINO RODRIGUEZ-HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted August 10, 2012
Pasadena, California
Before: SILVERMAN and WARDLAW, Circuit Judges, and FOGEL, District
Judge.**
Sabino Rodriguez-Hernandez appeals his conviction following his
conditional guilty plea to one count of being a deported alien in the United States,
in violation of 8 U.S.C. § 1326(a) & (b). Rodriguez-Hernandez argues that the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
district court erred in denying his motion to dismiss the indictment on the ground
that his initial deportation was invalid. We conclude that Rodriguez-Hernandez
validly waived his right to appeal the decision of the Immigration Judge (IJ), and
we affirm the district court.
On September 9, 1999, the IJ ordered Rodriguez-Hernandez removed on the
basis that he had been convicted of an aggravated felony. Rodriguez-Hernandez
waived his right to appeal, was deported, and subsequently re-entered the United
States. Rodriguez-Hernandez now claims that the original deportation order was in
error and that he did not understand English well enough to give a “considered and
intelligent” waiver of his right to appeal. Ubaldo-Figueroa, 364 F.3d at 1048
(citation omitted). The government bears the burden of demonstrating by “clear
and convincing evidence” that the defendant’s waiver was considered and
intelligent. See United States v. Pallares-Galan, 359 F.3d 1088, 1097 (9th Cir.
2004).
The government has met its burden. The record demonstrates that
Rodriguez-Hernandez sufficiently understood the proceedings. Rodriguez-
Hernandez elected to hold the proceedings in English, declining the opportunity to
proceed in Spanish. According to the record, Rodriguez-Hernandez learned
English while attending school exclusively in the United States, beginning in Head
2
Start and continuing through two years of high school. In contrast to the
“numerous” and “repeated” expressions of difficulty understanding which we have
held in other cases to signal a lack of comprehension, the transcript of the
deportation proceeding shows that Rodriguez-Hernandez responded intelligently to
the IJ’s questions and understood the nature of the proceedings here. Perez-Lastor
v. INS, 208 F.3d 773, 778-79 (9th Cir. 2000).
Although Rodriguez-Hernandez expressed momentary confusion regarding
the legal term “object,” in response the IJ both explained the term and repeated the
question a second time in a form that Rodriguez-Hernandez understood. The IJ
also throughly described to Rodriguez-Hernandez the detailed consequences of his
waiver, and went so far as to explain that other courts might disagree with the IJ’s
findings. The IJ’s extremely thorough colloquy concerning Rodriguez-
Hernandez’s right to appeal allowed Rodriguez-Hernandez time to consider
whether to exercise that right, and he gave affirmative, nonequivocal responses to
the IJ’s questions. See Pallares-Galan, 359 F.3d at 1097 (9th Cir. 2004) (holding
that an IJ must adequately explain the consequences of a waiver to the individual
who will be deported). Given these factors, we conclude that Rodriguez-
3
Hernandez validly waived his right to appeal, and he is therefore barred from
collaterally attacking the original deportation order.1
AFFIRMED.
1
Because we conclude that Rodriguez-Hernandez validly waived his right to
appeal and therefore cannot collaterally attack his prior deportation, we do not
reach the question of the validity of the underlying deportation.
4