United States v. Fernando Diaz

MEMORANDUM

Fernando Gomez Diaz (“Gomez”) appeals from his conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1326 . He contends that the district court erred in denying his motion to dismiss the indictment. In his motion, Gomez collaterally attacked the validity of the underlying deportation order pursuant to § 1326(d). Because the facts and procedural history are familiar to the parties, we do not recite them here, except as necessary to explain our disposition. We have jurisdiction under 28 U.S.C. § 1291 , and review de novo the district court’s denial of a motion to dismiss a § 1326 indictment. See United States v. Leon-Paz, 340 F.3d 1003, 1004 (9th Cir.2003). We affirm the district court’s denial of the motion.

To collaterally attack a prior deportation, an alien must demonstrate that “(1) [he] exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.” 8 U.S.C. § 1826 (d). A failure to inform an alien of relief for which…