Nungaray-Rubalcaba

MEMORANDUM **

Joel Nicholas Nungaray-Rubalcaba appeals his conviction and sentence for illegal reentry in 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. United States v. Camacho-Lopez, 450 F.3d 928, 929 (9th Cir.2006).

We conclude that the district court erred in denying Nungaray-Rubalcaba’s motion to dismiss the indictment, because the underlying order of deportation was invalid. We therefore reverse the conviction and sentence without addressing Nungaray-Rubalcaba’s additional assignments of error.

*438 To challenge the validity of a prior deportation order, a defendant must show: (1) exhaustion of any available administrative remedies; (2) improper deprivation of judicial review in the underlying removal proceedings; and (3) prejudice. See § 1326(d); United States v. Ortiz-Lopez, 385 F.3d 1202, 1203-04 (9th Cir.2004) (per curiam). However, if the defendant was not informed that he or she was eligible for relief from removal during the prior proceedings, the exhaustion…