United States of America v. Nicasio Roman

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NICASIO ROMAN,
Defendant - Appellant.
No. 12-10421
D.C. No. 2:10-cr-00289-KJM-1
MEMORANDUM*
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
FILED
MAR 19 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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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.
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