Torres

MEMORANDUM *

The INS unlawfully deported Juan Carlos Torres to Mexico on December 5, 1997. The Government concedes that the deportation was unlawful because an appeal of the deportation order was pending with the Board of Immigration Appeals (BIA). Thereafter, Torres reentered the United States without permission multiple times. He was deported on July 16, 1999 and September 22, 2000, both times through reinstatement of the 1997 deportation order. Some time after the 2000 deportation, Torres reentered the United States again.

In 2003, Torres was charged with reentering the United States after deportation in violation of 8 U.S.C. § 1326 . He filed a motion to dismiss on the ground that the underlying deportation proceedings violated due process. The district court denied the motion to dismiss, and Torres entered a conditional guilty plea. The denial of a motion to dismiss a § 1326 indictment is reviewed de novo when, as here, the motion is based on alleged due process violations in the underlying de *70 portation proceeding. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.2004).

A defendant charged with illegal reentry after deportation may collaterally attack the…