Perez-Toledo

MEMORANDUM **

Sergio Perez-Toledo (“Perez”) was convicted under 8 U.S.C. § 1326 (“Section 1326”) for being a deported alien found in the United States. He appeals his conviction by collaterally attacking the validity of the underlying deportation order. The parties are familiar with the facts; we proceed to the law.

To sustain a collateral attack under Section 1326, a defendant must demonstrate that: “(1) [he] exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived [him] of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326 (d). Perez did not appeal his deportation in 2000 to the Board of Immigration Appeals (“BIA”), *916 thereby failing to exhaust his administrative remedies as required under Section 1326(d)(1). Because he brings a constitutional challenge to the immigration laws, however, Perez is excused from the exhaustion requirement. See Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994) (“[a]n exception to the exhaustion requirement has been carved for constitutional challenges” to the…