Mendoza

MEMORANDUM *

The facts and the procedural posture of the case are known to the parties and we do not repeat them here.

*620 Oscar Mendoza was convicted of violating 8 U.S.C. § 1326 and now seeks to collaterally attack his deportation, claiming that due process errors and ineffective assistance of counsel deprived him of access to relief from deportation. We review his claim de novo. United States v. Velasco-Medina, 305 F.3d 839, 847 (9th Cir.2002). He must show that he has exhausted his administrative remedies, that the deportation proceedings deprived him of the opportunity for judicial review, and that the deportation order was “fundamentally unfair.” 8 U.S.C. § 1326 (d); see also United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004). To show unfairness satisfying § 1326(d)(3), Mendoza “must demonstrate that (1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.” Velasco-Medina, 305 F.3d at 847-48 (internal quotation marks omitted). Because counsel at the deportation hearing waived Mendoza’s right to appeal without consulting him, his failure to exhaust his appeals…