Bojorquez-Martinez

*220 MEMORANDUM *

Sergio Alejandro Bojorquez-Martinez appeals his conviction under 8 U.S.C. § 1326 for being an illegal alien found in the United States following deportation. Bojorquez-Martinez challenged the constitutional validity of the underlying deportation order in a motion to dismiss the indictment pursuant to 8 U.S.C. § 1326 (d). He argued that the Immigration Judge’s (“IJ”) failure to inform him of available relief from deportation rendered his deportation order invalid and therefore it could not serve as a predicate element of the illegal reentry offense under § 1326.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 . We vacate the district court’s order denying the motion to dismiss and remand. 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 upon an alleged due process defect in the underlying deportation proceeding.” United States v. Leon-Paz, 340 F.3d 1003, 1004 (9th Cir.2003).

I.

In order to collaterally attack the deportation order underlying the indictment, Bojorquez-Martinez must show that (1) he “exhausted any administrative remedies that may have been available to seek…