                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            Nov. 16, 2009
                             No. 09-12387                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 08-00070-CR-CLS-RRA

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

CIRILO RODRIGUEZ-MARTIN,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                           (November 16, 2009)

Before BLACK, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
      Cirilo Rodriguez-Martin, who conditionally pleaded guilty to reentering the

United States illegally, 8 U.S.C. § 1326(a), appeals the denial of his motion to

dismiss his indictment based on defects in his underlying removal proceedings.

See id. § 1326(d). Rodriguez-Martin argues that his removal proceedings were

“perfunctory” and his removal was ordered “on the mistaken assumption” that he

had been convicted of an aggravated felony. We affirm.

      We review de novo the denial of Rodriguez’s collateral challenge to his

prior removal proceedings. United States v. Zelaya, 293 F.3d 1294, 1297 (11th

Cir. 2002). To prevail, Rodriguez-Martin had to prove that he had exhausted

administrative remedies available to him to seek relief from the order of removal,

he was deprived of an opportunity for judicial review during the removal

proceedings, and “the entry of the order was fundamentally unfair.” Id. at 1298.

Rodriguez-Martin failed to satisfy these requirements.

      Rodriguez-Martin declined to avail himself of administrative remedies or

pursue opportunities for judicial review of the order of removal. Rodriguez-Martin

failed to challenge the administrative closure of his appeal to the Board of

Immigration Appeals and, even after the Board reinstated the appeal, Rodriguez-

Martin did not appear in the proceeding or move for reconsideration after the

Board dismissed his appeal. Rodriguez-Martin also did not seek a rescission of the



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order of removal. See id. at 1297. The district court did not err by denying

Rodriguez-Martin’s motion to dismiss his indictment.

      Rodriguez-Martin’s conviction is AFFIRMED.




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