Basulto-Pulido

MEMORANDUM *

José Isaac Basulto-Pulido appeals his conviction and sentence for violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo the denial of a motion to dismiss an 8 U.S.C. § 1326 indictment when the motion alleges due process defects in the underlying deportation proceeding. See United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir.2001).

We conclude that the district court erred in denying Basulto-Pulido’s motion to dismiss the indictment, because the underlying order of deportation was invalid. We therefore reverse the conviction and sentence without reaching the merits of Ba-sulto-Pulido’s additional objections.

To challenge the validity of a prior deportation order, under § 1326(d) a defendant must demonstrate: (1) exhaustion of administrative remedies; (2) improper deprivation of judicial review; and (3) prejudice. See United States v. Ortiz-Lopez, 385 F.3d 1202, 1203-04 (9th Cir.2004). However, the exhaustion requirement in § 1326(d)(1) will not bar collateral review of a deportation proceeding when the waiver of an administrative appeal was invalid. Muro-Inclan, 249 F.3d at 1183 (citing United States v.…