Caudillo-Infante

MEMORANDUM **

Adolfo Caudillo-Infante appeals from his jury conviction and sentence for being an alien found in the United States after having been removed following a conviction for an aggravated felony. Because the parties are familiar with the facts and procedural history, we do not restate them here except as necessary to explain our disposition. Caudillo-Infante’s appeal raises seven issues, none of which we find persuasive.

1. Caudillo-Infante contends that he is entitled to collaterally attack his underlying removal because it serves as a predicate element of his conviction. See United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 , 107 S.Ct. 2148 , 95 L.Ed.2d 772 (1987). Caudillo-Infante further contends that he did not waive his right to collaterally attack the removal proceedings by failing to appeal the IJ’s decision to the *622 Board of Immigration Appeals because he claims that the IJ’s improper advice barred him from making a considered and intelligent waiver. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004) (holding that a waiver of the right to appeal a removal order does not comport with due process when it is not considered and…

concurring:

I concur with the exception of Section 1. Caudillo-Infante reserved his right to appeal, but did not exercise his right to appeal the removal order. Therefore, pursuant to 8 U.S.C. § 1326 (d) 1 , he failed to exhaust his administrative remedy, and we are precluded from reaching the merits of his attack. According to the majority, Caudillo-Infante’s failure to exhaust his administrative appeal is treated as if Caudillo-Infante defectively waived his right to appeal, thus ignoring the requirements of § 1326(d).

The record discloses that the IJ explained to Caudillo-Infante the reasons why various avenues of relief from removal were unavailable to him. The record also discloses that the IJ explained to Caudillo-Infante the appeal paperwork, provided the forms, and advised him of the appeal deadline. Caudillo-Infante did not exercise his right to appeal within the thirty-day allotted time. Under 8 U.S.C. § 1326 (d)(1), this failure is fatal to his collateral challenge. See United States v. Hinojosa-Perez, 206 F.3d 832, 835-36 (9th Cir.2000).

Under the majority’s approach, it becomes more advantageous for an alien to reserve the right to appeal and let his appeal time…