                                                                            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                            NOT FOR PUBLICATION                              AUG 17 2012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.

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