                                                                           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                           NOT FOR PUBLICATION                              SEP 01 2011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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