United States v. Ismael Lopez-Garcia

Ninth Circuit

United States v. Ismael Lopez-Garcia

449 F. App'x 587

CourtCourt of Appeals for the Ninth Circuit

DecidedSeptember 1, 2011

Docket10-50054

StatusUnpublished

This text of 449 F. App'x 587 (United States v. Ismael Lopez-Garcia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Ismael Lopez-Garcia, 449 F. App'x 587 (9th Cir. 2011).

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Opinion

MEMORANDUM *

Ismael Lopez-Garcia, a native and citizen of Mexico, appeals his conviction for being a removed alien found within the United States in violation of 8 U.S.C. § 1326. He argues that the removal order underlying his conviction was invalid. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Because Lopez-Garcia claimed that the proceeding that resulted in his prior expedited removal order was “fundamentally unfair,” he is entitled to “some meaningful review” of the proceeding before the order can be used to establish conclusively an element of his criminal offense. United States v. Barajas-Alvarado, 655 F.3d 1077, 1086-88, 2011 WL 3689244, at *7-8 (9th Cir.2011); see also United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). But even assuming defects in that proceeding violated his due process rights, Lopez-Garcia fails to “make a ‘plausible’ showing that the facts presented would cause the Attorney General to exercise discretion in his favor,” United States v. Arce-Herndez, 163 F.3d 559, 563 (9th Cir.1998), and permit him to withdraw his application for admission, 8 U.S.C. § 1225(a)(4), where he deliberately presented false documents to inspection officers in an effort to gain admission to the United States, was neither a youth nor elderly, did not allege he was in poor health, and had not shown any humanitarian or public interest considerations weighing in his favor. See Barajas-Alvarado, 655 F.3d at 1090-91, 2011 WL 3689244, at *10-11. Because Lopez-Garcia has not shown prejudice, the proceeding resulting in the predicate expedited removal order was not fundamentally unfair, and the order could be used as a predicate to the § 1326 prosecution. Id. at 1091, *11.

AFFIRMED.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM *

Ismael Lopez-Garcia, a native and citizen of Mexico, appeals his conviction for being a removed alien found within the United States in violation of 8 U.S.C. § 1326. He argues that the removal order underlying his conviction was invalid. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Because Lopez-Garcia claimed that the proceeding that resulted in his prior expedited removal order was “fundamentally unfair,” he is entitled to “some meaningful review” of the proceeding before the order can be used to establish conclusively an element of his criminal offense. United States v. Barajas-Alvarado, 655 F.3d 1077, 1086-88, 2011 WL 3689244, at *7-8 (9th Cir.2011); see also United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). But even assuming defects in that proceeding violated his due process rights, Lopez-Garcia fails to “make a ‘plausible’ showing that the facts presented would cause the Attorney General to exercise discretion in his favor,” United States v. Arce-Herndez, 163 F.3d 559, 563 (9th Cir.1998), and permit him to withdraw his application for admission, 8 U.S.C. § 1225(a)(4), where he deliberately presented false documents to inspection officers in an effort to gain admission to the United States, was neither a youth nor elderly, did not allege he was in poor health, and had not shown any humanitarian or public interest considerations weighing in his favor. See Barajas-Alvarado, 655 F.3d at 1090-91, 2011 WL 3689244, at *10-11. Because Lopez-Garcia has not shown prejudice, the proceeding resulting in the predicate expedited removal order was not fundamentally unfair, and the order could be used as a predicate to the § 1326 prosecution. Id. at 1091, *11.

AFFIRMED.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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449 F. App'x 587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ismael-lopez-garcia-ca9-2011.

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