NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0165n.06 Case No. 17-3909 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 30, 2018 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT,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. ...
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