                                                                              FILED
                            NOT FOR PUBLICATION                               MAY 29 2014

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50285

               Plaintiff - Appellee,             D.C. No. 3:11-cr-03382-H-1

  v.
                                                 MEMORANDUM*
JOAQUIN HERNANDEZ-NAVARRO,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                        Argued and Submitted May 15, 2014
                               Pasadena, California

Before: PREGERSON, REINHARDT, and NGUYEN, Circuit Judges.

       Defendant Joaquin Hernandez-Navarro (“Hernandez”) appeals from his

conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326(a)

and (b), by challenging the validity of his underlying deportation.1 We review the


           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       1
        Hernandez does not appeal his conviction for false claim to United States
citizenship, in violation of 18 U.S.C. § 911.
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 know an answer reflect neither a lack of

understanding of the removal proceedings in general nor a specific lack of

understanding of the right to appeal. Hernandez’s waiver of his right to appeal was

therefore valid.

2.    An alien in removal proceedings has the right to counsel under the Fifth

Amendment. Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004).

“Although IJs may not be required to undertake Herculean efforts to afford the


                                          2
right to counsel, at a minimum they must (1) inquire whether the petitioner wishes

counsel, (2) determine a reasonable period for obtaining counsel, and (3) assess

whether any waiver of counsel is knowing and voluntary.” Ramos, 623 F.3d at 682

(internal quotation marks omitted) (quoting Ram v. Mukasey, 529 F.3d 1238, 1241

(9th Cir. 2008)). Here, Hernandez was advised, in a group, of his right to counsel,

provided with a list of free counsel, and informed that if he wished to retain

counsel he did not need to proceed with his immigration case that day. The IJ then

asked him individually if he wished to represent himself and proceed with the

hearing that day, and he said that he did. Hernandez offers no legal basis for his

assertion that the IJ’s advisal of the right to counsel was invalid because the IJ did

not sufficiently explain the potential consequences of self-representation.

3.    Because Hernandez validly waived his right to appeal and has not

demonstrated a due process violation in his removal proceedings, his collateral

challenge to his underlying removal order fails. United States v. Ubaldo-Figueroa,

364 F.3d 1042, 1048 (9th Cir. 2004); 8 U.S.C. § 1326(d). We affirm the

conviction for attempted entry after deportation.

AFFIRMED.




                                           3
