Lopez-Canales

MEMORANDUM *

Juan Lopez-Canales appeals the district court’s denial of his motion to dismiss the indictment charging him with illegal reentry following deportation, in violation of 8 U.S.C. § 1326 . Lopez-Canales contends that the indictment should have been dismissed because the prior, in absentia, deportation violated his due process rights. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

A defendant charged with illegal reentry under 8 U.S.C. § 1326 may collaterally attack the underlying removal order under the due process clause because the underlying order serves as a predicate element of the offense. United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir.2004). Lopez-Canales cannot challenge the validity of the underlying order unless he demonstrates that (1) he exhausted any administrative remedies available to him to appeal the removal order; (2) the underlying removal proceedings deprived him of the opportunity for judicial review; and (3) the entry of the order was fundamen *342 tally unfair. 1 8 U.S.C. § 1326 (d); United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004). The underlying removal order is fundamentally unfair if (1)…