United States v. Elizardo Luna-Magdaleno

MEMORANDUM

Elizardo Luna-Magdaleno appeals from his conviction and sentence for attempted entry after deportation in violation of 8 U.S.C. § 1326 .

1.Luna-Magdaleno first contends that the district court erred in denying his motion to dismiss the indictment, in which he challenged the validity of all three removal orders on which the government relied. Only one valid removal order is necessary to sustain the conviction, and we conclude that the 2005 removal order is valid. Luna-Magdaleno does not contest that he was properly deemed removable in 2005 because he had made a false claim of United States citizenship. See 8 U.S.C. § 1182 (a)(6)(C)(ii). He argues only that the removal order was fundamentally unfair because the immigration judge failed to advise him of various forms of relief from removal. However, he concedes that, of the four forms of relief he initially identified, he was not actually eligible for voluntary departure or cancellation of removal for certain nonpermanent residents. Luna-Magdaleno was also ineligible for cancellation of removal nunc pro tunc because, under then-existing law, his 1998 and 2000 burglary convictions were aggravated felonies. See 8 U.S.C. §…