United States v. Ismael Lopez-Garcia

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…