                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 19 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 12-10421

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00289-KJM-1

  v.
                                                 MEMORANDUM*
NICASIO ROMAN,

              Defendant - Appellant.


                   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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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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