United States v. Julian Arquelao

MEMORANDUM

Julian Lopez Arquelao (“Lopez”) appeals his conviction and sentence for being a previously deported alien found in the United States without permission in violation of 8 U.S.C. §§ 1326 (a), (b)(2). We affirm.

1.The district court properly denied Lopez’s motion pursuant to 8 U.S.C. § 1326 (d) to dismiss the indictment because his 2005 removal order was not “fundamentally unfair.” United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004). Even assuming an Immigration Judge (“IJ”) has a duty to inform a non-citizen of his apparent eligibility for a U visa, Lopez was not eligible for U visa interim relief in 2005 because he was an aggravated felon due to his assault with a firearm conviction in 2004.

Furthermore, Lopez was deportable as charged. Although his 2000 removal proceedings were terminated because the Immigration and Naturalization Service (“INS”) ordered Lopez to remain in the United States so he could cooperate with the Rampart Scandal investigation, that order did not permit Lopez to remain in the . United States indefinitely. Instead, the INS order stated that Lopez “will im-mediat[e]ly surrender for removal upon demand.” The INS requested Lopez’s…