NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 17 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-2654

D.C. No.

Plaintiff - Appellee, 2:22-cr-00574-JJT-1 v.

MEMORANDUM* JUNIOR STANDLY MARTINEZ- MARTINEZ,

Defendant - Appellant.

Appeal from the United States District Court

for the District of Arizona

John Joseph Tuchi, District Judge, Presiding

Argued and Submitted September 12, 2024

Phoenix, Arizona Before: RAWLINSON and COLLINS, Circuit Judges, and FITZWATER, District

Judge.**

Junior Standly Martinez-Martinez (Martinez-Martinez), a citizen of Honduras, appeals from the district court’s denial of his motion to dismiss the

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. indictment charging him with illegal reentry in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

“We review de novo a motion to dismiss an indictment under 8 U.S.C. § 1326 on the basis of a claimed due process defect in the predicate deportation proceeding.” United States v. De La Mora-Cobian, 18 F.4th 1141, 1145 (9th Cir. 2021) (citation omitted). “Mixed questions of law and fact . . . are also reviewed de novo, while the underlying facts are reviewed for clear error.” Id. (citations omitted).

1. Martinez-Martinez contends that the district court erroneously denied the motion to dismiss the indictment because “he [demonstrated] a due process right to collaterally attack the 1998 Removal Order.” “To prevail in a collateral attack on the underlying removal order in a motion to dismiss, [Martinez-Martinez] must, as a threshold matter, show that he exhausted his administrative remedies.” United States v. Villavicencio-Burruel, 608 F.3d 556, 559 (9th Cir. 2010) (citations omitted); see also 8 U.S.C. § 1326(d).1 1 “In a criminal proceeding under this section, [a non-citizen] may not challenge the validity of the deportation order . . . unless the [non-citizen] demonstrates that - - (1) the [non-citizen] exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the [non-citizen] of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d). The district court held that Martinez-Martinez did not satisfy the first two requirements, and it therefore did not address the third.

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Martinez-Martinez has not met the first threshold requirement. Martinez- Martinez maintains that administrative remedies were unavailable to him because the withdrawal of his “appeal [was] the functional equivalent” of an invalid waiver. However, in Villavicencio-Burruel, we held that, by “declin[ing] to exercise [the] right” to appeal, Villavicencio failed to “comply with § 1326(d)(1)’s exhaustion requirement.” 608 F.3d at 560. We concluded that failure to file an appeal was not “tantamount to [him] waiving his appeal rights . . . and does not excuse the nonexhaustion.” Id.

Federal regulations in effect when Martinez-Martinez filed his withdrawal treated the withdrawal of an appeal the same as failure to file an appeal. See 8 C.F.R. § 3.4 (1999). Therefore, the reasoning of Villavicencio-Burruel forecloses Martinez-Martinez’s argument that the withdrawal of his appeal was the equivalent of an invalid waiver.

2. Contrary to Martinez-Martinez’s argument, he also failed to establish that he was deprived of an opportunity for judicial review. “Because he could have sought judicial review had he taken such an appeal, [Martinez-Martinez] was not deprived of the opportunity for judicial review and therefore did not satisfy § 1326(d)(2).” United States v. Portillo-Gonzalez, 80 F.4th 910, 920 (9th Cir. 2023) (alteration and internal quotation marks omitted). Thus, the district court did not err by denying the motion to dismiss the indictment because Martinez-Martinez

3 23-2654 could not collaterally challenge the validity of the 1998 Removal Order. See Villavicencio-Burruel, 608 F.3d at 560; see also United States v. Castellanos- Avalos, 22 F.4th 1142, 1146 (9th Cir. 2022) (citation and quotation marks omitted) (“[A] failure to satisfy any of the three prongs [of § 1326(d)] dooms a collateral attack on a removal order.”) (emphasis in the original).

AFFIRMED.

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