                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 05-10455
                Plaintiff-Appellee,
               v.                           D.C. No.
                                          CR-04-20182-JF
JOSE JESUS CAMACHO-LOPEZ,
                                            OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
          for the Northern District of California
         Jeremy Fogel, District Judge, Presiding

                 Argued and Submitted
        March 16, 2006—San Francisco, California

                    Filed May 30, 2006

    Before: Alfred T. Goodwin, Stephen Reinhardt, and
          Michael Daly Hawkins, Circuit Judges.

                Opinion by Judge Hawkins




                           5887
               UNITED STATES v. CAMACHO-LOPEZ             5889


                         COUNSEL

Cynthia C. Lie (briefed), Assistant Federal Public Defender,
and Mara K. Goldman (briefed), Research Attorney, San Jose,
California, for the defendant-appellant.

Susan Knight (briefed and argued), Assistant U.S. Attorney,
San Jose, California, for the plaintiff-appellee.


                         OPINION

HAWKINS, Circuit Judge:

   Jose Jesus Camacho-Lopez (“Camacho”) appeals his con-
viction for illegal reentry following deportation, arguing that
a defect in his earlier deportation proceeding — the Immigra-
tion Judge’s (“IJ”) advice that Camacho was ineligible for
5890           UNITED STATES v. CAMACHO-LOPEZ
discretionary relief because of his vehicular manslaughter
conviction — invalidates his deportation order and appeal
waiver, thereby rendering an essential element of his convic-
tion missing. We agree.

        FACTS AND PROCEDURAL HISTORY

   Camacho was admitted to the United States as a lawful per-
manent resident in 1978. He was later convicted on two
counts of vehicular manslaughter with gross negligence, in
violation of California Penal Code section 191.5(a). After his
release from prison, Camacho was served with a Notice to
Appear, alleging that Camacho was subject to removal
because his conviction qualified as an aggravated felony.

   At his deportation hearing, the IJ noted that Camacho had
been convicted of vehicular manslaughter and therefore found
“that the respondent is not eligible for withholding of removal
even if he wished to file the said application, particularly
(unintelligible) this court will pre-permit [sic] the respon-
dent’s application for withholding should he (unintelligible)
to file it.” The IJ then asked Camacho if he wanted to waive
his right to appeal. Camacho responded that he “[di]dn’t have
any other choice,” and accepted the order as final. The IJ then
ordered Camacho’s removal to Mexico, which was executed
on November 24, 1998.

   Six years later, Camacho was found in the United States
and indicted for illegal reentry following deportation in viola-
tion of 8 U.S.C. § 1326. He unsuccessfully sought dismissal
of the indictment based on Leocal v. Ashcroft, 543 U.S. 1
(2004). In Leocal, the Supreme Court held that a Florida DUI
offense did not constitute a “crime of violence” within the
meaning of 18 U.S.C. § 16. Id. at 4. Camacho thereafter
entered a conditional guilty plea to the charge, preserving the
issue for appeal. While Camacho’s appeal was pending, we
applied Leocal in Lara-Cazares v. Gonzales, 408 F.3d 1217
(9th Cir. 2005), and held that a conviction for gross vehicular
               UNITED STATES v. CAMACHO-LOPEZ               5891
manslaughter while intoxicated, under California Penal Code
section 191.5(a), does not constitute a “crime of violence”
under 18 U.S.C. § 16 and, thus, is not an aggravated felony
as defined by the Immigration and Nationality Act (“INA”),
see 8 U.S.C. § 1101(a)(43).

                 STANDARD OF REVIEW

   “We review a denial of a motion to dismiss an 8 U.S.C.
§ 1326 indictment de novo when the motion is based upon an
alleged due process defect in the underlying deportation pro-
ceeding.” United States v. Pallares-Galan, 359 F.3d 1088,
1094 (9th Cir. 2004). The district court’s factual findings are
reviewed for clear error. United States v. Hinojosa-Perez, 206
F.3d 832, 835 (9th Cir. 2000).

                        DISCUSSION

   [1] “Because the underlying removal order serves as a
predicate element of [a § 1326 illegal reentry offense], a
defendant charged with that offense may collaterally attack
the removal order under the due process clause.” Pallares-
Galan, 359 F.3d at 1095. In order to sustain the attack under
the controlling statutory provisions, a defendant must ordinar-
ily show: (1) exhaustion of available administrative remedies
to seek relief from the deportation order, (2) improper depri-
vation of the opportunity for judicial review, and (3) funda-
mental unfairness of the underlying removal order. See 8
U.S.C. § 1326(d).

   [2] Here, the government concedes that Leocal — a sub-
stantive interpretation of “crime of violence” under 18 U.S.C.
§ 16 — applies to Camacho’s 1998 deportation hearing.
Because the IJ erroneously advised Camacho that he was inel-
igible for discretionary relief when the IJ implicitly character-
ized Camacho’s conviction as an aggravated felony, the
government also concedes that Camacho is excused from the
exhaustion requirement and that Camacho was deprived of a
5892              UNITED STATES v. CAMACHO-LOPEZ
meaningful opportunity for judicial review. See Pallares-
Galan, 359 F.3d at 1096-98.

   [3] Still, to succeed in his attack, Camacho must demon-
strate that he was prejudiced and that, therefore, the removal
order was fundamentally unfair. See 8 U.S.C. § 1326(d)(3).
Camacho’s Notice to Appear charged him as removable only
for having committed an aggravated felony; as discussed
above, Camacho’s prior conviction did not fit that definition.
Thus, Camacho was removed when he should not have been
and clearly suffered prejudice.1 We, therefore, reverse and
remand with instructions to dismiss the indictment.

  REVERSED and REMANDED.




  1
   In this respect, Camacho’s case differs from Pallares-Galan. Pallares-
Galan had additional convictions alleged in the original Notice to Appear,
which also could have supported his removability and led us to remand to
the district court to consider the issue of prejudice. 359 F.3d at 1092,
1103-04.
