Moriel-Luna

MEMORANDUM *

Miguel Moriel-Luna appeals the district court’s denial of his motions to dismiss the indictment and to exclude the warrant of deportation and certificate of nonexistence of record, as well as his seventy-month prison sentence. He entered a conditional guilty plea to violating 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. *812 § 1291 , and we reverse in part, affirm in part, and remand for further proceedings.

I.

“We review de novo the denial of a motion to dismiss an 8 U.S.C. § 1326 indictment when the motion to dismiss is based on alleged due process defects in an underlying deportation proceeding.” United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.2004). To successfully attack the underlying deportation proceeding, a defendant must show: (1) exhaustion of available administrative remedies to appeal the deportation order; (2) improper deprivation of the opportunity for judicial review; and (3) prejudice suffered from the due process violations in the deportation proceeding. See id. at 1048 .

A defendant satisfies the first prong despite waiving his administrative appellate rights if his waiver was not “considered and intelligent.” A…