Opinion
No. 12-10421 D.C. No. 2:10-cr-00289-KJM-1
03-19-2014
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NICASIO ROMAN, Defendant - Appellant.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted March 10, 2014
San Francisco, California
Before: FARRIS, REINHARDT, and TASHIMA, Circuit Judges.
Nicasio Roman appeals his conviction and sentence for being a deported alien found in the United States in violation of 8 U.S.C. § 1326. He challenges the district court's denial of his motion to dismiss his indictment based on alleged due process violations in his underlying removal proceeding. We have jurisdiction under 28 U.S.C. § 1291, and we review de novo. See United States v. Valdavinos-Torres, 704 F.3d 679, 685 (9th Cir. 2012). We affirm.
An alien mounting a collateral attack on the underlying removal order "must, as a threshold matter, show that he exhausted his administrative remedies." United States v. Valdavinos-Torres, 704 F.3d 679, 685 (9th Cir. 2012) (quoting United States v. Villavicencio-Burruel, 608 F.3d 556, 559 (9th Cir. 2010)); see also 8 U.S.C. § 1326(d)(1). Here, the record reflects that Roman appealed the underlying removal order to the Board of Immigration Appeals, but later dismissed his appeal. Thus, Roman failed to exhaust his administrative remedies.
AFFIRMED.