United States v. Antonio Lopez-Jacobo

MEMORANDUM

Antonio Lopez-Jacobo (“Lopez”) appeals the district court’s denial of his motion to dismiss his indictment under 8 U.S.C. § 1326 for illegal reentry into the United States by a deported alien. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo the denial of a motion to dismiss an 8 U.S.C. § 1326 indictment when the motion to dismiss is based on an alleged due-process violation in the underlying deportation proceeding. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.2004). We affirm.

Lopez moved to dismiss the indictment on the ground that his underlying 1997 deportation proceeding was constitutionally defective. The government deported Lopez because he had been convicted of a crime involving the use of a firearm. See 8 U.S.C. § 1227 (a)(2)(C) (1997). Lopez argues that the government deprived him of due process at the deportation proceeding because the Immigration Judge (IJ) did not tell him that potential relief from removal might be given under section 245(a) of the Immigration and Nationality Act (INA) if Lopez adjusted his status. See 8 U.S.C. § 1255 (a) (1997). By adjusting his status, Lopez would have converted his deportation…