FILED
NOT FOR PUBLICATION SEP 01 2011
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. 10-50054
Plaintiff - Appellee, D.C. No. 3:09-cr-01118-WQH-1
v.
MEMORANDUM *
ISMAEL LOPEZ-GARCIA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted July 15, 2011
Pasadena, California
Before: RYMER, TALLMAN, and IKUTA, Circuit Judges.
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.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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, No. 10-50134, --- F.3d ----, 2011 WL 3689244, at *7–8 (9th Cir. Aug.
24, 2011); see also United States v. Mendoza-Lopez, 481 U.S. 828, 837–38 (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-Hernandez, 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, 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 11.
AFFIRMED.
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