FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ENCARNACION GONZALEZVILLALOBOS,

Defendant-Appellant.

No. 12-30150

D.C. No.

2:11-cr-02095-

RMP-1

OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Rosanna Malouf Peterson, Chief District Judge, Presiding

Argued and Submitted

February 8, 2013—Seattle, Washington

Filed July 26, 2013

Before: Raymond C. Fisher, Ronald M. Gould,

and Richard A. Paez, Circuit Judges.

Opinion by Judge Paez
2 UNITED STATES V. GONZALEZ-VILLALOBOS

 This summary constitutes no part of the opinion of the court. It has

*

been prepared by court staff for the convenience of the reader.

SUMMARY

*

Criminal Law

The panel affirmed the district court’s denial of a motion

to dismiss an indictment charging illegal reentry after a prior

deportation without addressing the merits of the defendant’s

argument that the alleged prior deportation proceeding was

fundamentally unfair.

The panel held that the defendant, who exhausted his

administrative remedies by appealing the Immigration

Judge’s adverse ruling to the Board of Immigration Appeals,

failed to show that an error or obstacle related to his

deportation proceedings improperly deprived him of the

opportunity for judicial review, as required for a collateral

attack on the deportation order under 8 U.S.C. § 1326(d).

The panel explained that the IJ’s denial of an evidentiary

hearing is not an error that, by its nature, affected the

defendant’s awareness of or ability to seek judicial review.

COUNSEL

Nicholas Marchi (argued), Carney & Marchi, P.S., Seattle,

Washington, for Defendant-Appellant.

Alexander C. Ekstrom, Assistant United States Attorney

(argued), and Michael C. Ormsby, United States Attorney,

Yakima, Washington, for Plaintiff-Appellee.
UNITED STATES V. GONZALEZ-VILLALOBOS 3

OPINION

PAEZ, Circuit Judge:

Defendant Encarnacion Gonzalez-Villalobos appeals his

conviction for illegal reentry after a prior deportation in

violation of 8 U.S.C. § 1326. In the district court he moved

to dismiss the indictment on the ground that the prior

deportation order was fundamentally unfair. See 8 U.S.C.

§ 1326(d). After the district court denied his motion,

Gonzalez-Villalobos entered a conditional guilty plea,

preserving his right to appeal the denial of the motion. On

appeal, he renews his challenge to the prior deportation order.

When a defendant collaterally attacks the validity of a

prior deportation order in a § 1326 prosecution, he must show

that he exhausted his administrative remedies, that the

deportation proceedings improperly deprived him of the

opportunity for judicial review, and that entry of the prior

deportation order was fundamentally unfair. See 8 U.S.C.

§ 1326(d)(1)–(3). As we explain below, we have generally

found that where an alien was deprived of the opportunity to

exhaust his administrative remedies, satisfying § 1326(d)(1),

he also has shown that he was deprived of the opportunity to

seek judicial review, satisfying § 1326(d)(2). Here,

Gonzalez-Villalobos has shown that he exhausted his

administrative remedies by appealing the Immigration Judge

(“IJ”)’s adverse ruling to the Board of Immigration Appeals

(“BIA”). However, he has failed to show that an error or

obstacle related to his deportation proceedings improperly

deprived him of the opportunity for judicial review, as

required by 8 U.S.C. § 1326(d)(2). Because subsections

(d)(1), (d)(2), and (d)(3) must all be satisfied either directly

or constructively, we affirm the denial of Gonzalez-
4 UNITED STATES V. GONZALEZ-VILLALOBOS

 We have recognized that “the Illegal Immigration Reform and 1

Immigrant Responsibility Act of 1996 (‘IIRIRA’) amended the

immigration statutes so as to eliminate the previous legal distinction

between deportation, removal and exclusion, merging all of these

proceedings into a broader category entitled ‘removal proceedings.’”

United States v. Lopez-Gonzalez, 183 F.3d 933, 934 (9th Cir. 1999). We

continue to use the term “deportation” in this opinion, however, to track

the language of 8 U.S.C. § 1326. See id. at 935 (concluding that “any

distinction between deportation and removal is legally insignificant for

purposes of § 1326”).

 “As of March 2003, INS became United States Citizenship and 2

Immigration Services, an agency within the Department of Homeland

Security.” Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1013 n.1 (9th

Cir. 2008).

Villalobos’s motion to dismiss and his conviction without

addressing the merits of his argument that the alleged prior

deportation proceeding was fundamentally unfair.

I.

FACTUAL AND PROCEDURAL HISTORY

A.

The eventssurrounding the underlying deportation in this

case occurred more than twenty years ago. In March 1986, 1

Gonzalez-Villalobos was arrested in Yakima, Washington,

for possession of a controlled substance (cocaine) with intent

to deliver. He was eventually convicted of this offense in the

Superior Court of Washington, County of Yakima, in July

1986. In connection with Gonzalez-Villalobos’s arrest,

agents from the Immigration and Naturalization Service

(“INS”) assisted the local police with the service and

execution of a search warrant at his house. A few days after 2
UNITED STATES V. GONZALEZ-VILLALOBOS 5

 This conviction arose from the same incident as his state drug 3

conviction.

 The SAW program was a program through which certain aliens who 4

had resided in the United States and “performed seasonal agricultural

services in the United States for at least 90 man-days, during the 12-month

period ending on May 1, 1986” could obtain temporary legal status, which

would automatically adjust to permanent resident status after a period of

time. 8 U.S.C. § 1160(a); see also Soriano-Vino v. Holder, 653 F.3d

1096, 1099 (9th Cir. 2011); 8 C.F.R. § 210.5(a).

the arrest, an INS agent prepared form I-213, “Record of

Deportable Alien,” in which he recorded GonzalezVillalobos’s immigration status and the events surrounding

his arrest. The I-213 contained an A-file number ending in

“910.” The next day, INS served Gonzalez-Villalobos with

an order to show cause, alleging that he was deportable as an

alien in the United States who entered without inspection.

When INS could not locate Gonzalez-Villalobos, it

administrativelyclosed the deportation proceeding in January

1987. As it turned out, Gonzalez-Villalobos was incarcerated

in federal prison, where he was serving a sentence for being

an alien in possession of a firearm. Gonzalez-Villalobos 3

completed his federal sentence in December 1987 and upon

his release he was taken into custody by INS. A few weeks

later, INS released him from custody because it determined

that he was a class member in a pending class action. The

agency then cancelled the pending order to show cause.

After his release from INS custody, Gonzalez-Villalobos

applied for legal status through the “special agricultural

worker” (“SAW”) program in May 1988. See 8 U.S.C.

§ 1160; 8 C.F.R. § 210.3. INS assigned Gonzalez- 4

Villalobos’s SAW application a different A-file number,

ending in “678.” It denied his SAW application in November
6 UNITED STATES V. GONZALEZ-VILLALOBOS

1989 on the ground that his state drug conviction rendered

him ineligible for the program. Gonzalez-Villalobos

appealed, and the INS Legalization Appeals Unit affirmed the

denial of his application in February 1991. Apparently

unaware of the Appeals Unit’s ruling, Gonzalez-Villalobos

visited an INS office in November 1991 to inquire about the

status of his SAW application. While there, he was detained

by INS agents, who immediately completed a second I-213,

reciting Gonzalez-Villalobos’s conviction record and

detention history. This I-213 had the same A-file number as

the one prepared in 1986, ending in “910.” The next day, INS

issued an order to show cause, alleging that GonzalezVillalobos was deportable as an alien who had been convicted

of a controlled substance offense.

At a deportation hearing in April 1992, GonzalezVillalobos argued that INS agents wrongfully discovered his

conviction record by looking through the SAW file. He

argued that “when he went to check on his legalization

application and the current status of it, they reviewed the

computer and the file and asked him to wait there. They

made a phone call and subsequently, from across the hall,

where the deportation section and the legalization office are

in the same building across the hall, came the agent from

INS.”

Gonzalez-Villalobos requested a suppression hearing so

that he could question the INS agents on how they obtained

his criminal history record. In response, the IJ asked the

government’s attorney to “assure [him] as an officer of the

Court that [the evidence] did not result from a sting operation

being operated by the investigative arm of the Service in

conjunction with the legalization office.” The government’s

attorney informed the court that he was not offering any
UNITED STATES V. GONZALEZ-VILLALOBOS 7

evidence that came from the SAW legalization file. The IJ

then denied the request for a suppression hearing, stating that

“the evidence submitted by the Service was totally

independent of the legalization process.” She further

concluded that Gonzalez-Villalobos was not eligible for any

relief and accordingly entered a deportation order. The IJ

also informed Gonzalez-Villalobos and his attorney of the

right to appeal her ruling to the BIA. Gonzalez-Villalobos

timely appealed, primarily challenging the IJ’s denial of his

request for a suppression hearing.

The BIA subsequently dismissed Gonzalez-Villalobos’s

appeal, finding that he had not carried his burden of justifying

the need for a suppression hearing. Gonzalez-Villalobos then

applied for a stay of deportation, which INS denied in April

1999. The record does not reflect whether he filed a petition

for review in the Ninth Circuit, but it does reflect that he filed

a petition for a writ of habeas corpus in the United States

District Court for the Western District of Washington. Upon

filing the petition, he sought a temporary restraining order

enjoining his deportation. He was deported to Mexico,

however, on April 13, 1999. Shortly afterwards, GonzalezVillalobos agreed to dismiss the petition and withdraw the

motion.

B.

The events leading to Gonzalez-Villalobos’s current

prosecution are fairly straightforward. At some point after

being deported, Gonzalez-Villalobos returned to the United

States. He was located in Yakima County in July 2011, and

a few weeks later, he was arrested and charged with being an

alien in the United States after deportation, in violation of

8 U.S.C. § 1326. The parties agree that the 1992 deportation
8 UNITED STATES V. GONZALEZ-VILLALOBOS

 Gonzalez-Villalobos argues that the conviction records should have 5

been suppressed. Although the exclusionary rule generally does not apply

in civil deportation proceedings, Martinez-Medina v. Holder, 673 F.3d

1029, 1033 (9th Cir. 2011), it does apply where the immigration agency

violates its own rules if (1) “the regulation serves a purpose of benefit to

the alien,” and (2) “the violation prejudiced interests of the alien which

were protected by the regulation,” United States v. Calderon-Medina,

591 F.2d 529, 531 (9th Cir. 1979); see also Hong v. Mukasey, 518 F.3d

1030, 1035 (9th Cir. 2008). Here, Gonzalez-Villalobos argues that his

conviction records should have been suppressed because the INS agents

violated 8 U.S.C. § 1160(b)(6)(A), a statutory confidentiality guarantee for

SAW applicants. At the time of the alleged violation, this provision

prohibited officials from using information provided in a SAW application

“for any purpose other than to make a determination on the application.”

8 U.S.C. § 1160(b)(6)(A) (1991).

order, affirmed by the BIA in 1999, was the alleged prior

deportation. Gonzalez-Villalobos moved to dismiss the

indictment on the ground that the 1992 deportation order was

invalid because the IJ had erred in denying his motion for a

suppression hearing. The district court denied the motion,

finding that even if the IJ had erred in denying GonzalezVillalobos’s motion, he could not establish prejudice.

Gonzalez-Villalobos then entered a conditional guilty plea,

preserving his right to appeal the district court’s denial of his

motion to dismiss. Following entry of the judgment and

commitment order, Gonzalez-Villalobos timely appealed. He

argues that the underlying deportation order was

fundamentally unfair, and therefore invalid, because it was

based on conviction records that the INS agents unlawfully

discovered in his SAW file, and because the IJ did not grant

an evidentiary hearing on how the agents obtained those

records.

5
UNITED STATES V. GONZALEZ-VILLALOBOS 9

II.

STANDARD OF REVIEW

We review de novo the denial of a motion to dismiss an

indictment alleging a violation of 8 U.S.C. § 1326 when the

basis for the motion is an alleged due process violation in the

underlying deportation proceeding. United States v. UbaldoFigueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). We review

for clear error the district court’s factual findings. United

States v. Camacho-Lopez, 450 F.3d 928, 929 (9th Cir. 2006).

III.

ANALYSIS

In a prosecution for illegal reentry under 8 U.S.C.

§ 1326(a), the government must prove, inter alia, that the

defendant was previously “denied admission, excluded,

deported, or removed or has departed the United States while

an order of exclusion, deportation, or removal [wa]s

outstanding.” 8 U.S.C. § 1326(a)(1); see also 9th Cir. Model

Crim. Jury Instr. 9.8 (2010). The defendant, in turn, has a due

process right to collaterally attack the underlying deportation

order, because it serves as a predicate element of the crime

for which he is charged. United States v. Mendoza-Lopez,

481 U.S. 828, 837–38 (1987) (“Our cases establish that where

a determination made in an administrative proceeding is to

play a critical role in the subsequent imposition of a criminal

sanction, there must be some meaningful review of the

administrative proceeding.”). Thus, “where the defects in an

administrative proceeding foreclose judicial review of that

proceeding, an alternative means of obtaining judicial review

must be made available before the administrative order may
10 UNITED STATES V. GONZALEZ-VILLALOBOS

be used to establish conclusively an element of a criminal

offense.” Id. at 838; see also United States v. ZarateMartinez, 133 F.3d 1194, 1197 (9th Cir. 1998), overruled on

other grounds by United States v. Corona-Sanchez, 291 F.3d

1201 (9th Cir. 2012) (en banc) (“In a criminal prosecution

under § 1326, the Due Process Clause of the Fifth

Amendment requires a meaningful opportunity for judicial

review of the underlying deportation. If the defendant’s

deportation proceedings fail to provide this opportunity, the

validity of the deportation may be collaterally attacked in the

criminal proceeding.” (citation omitted)).

A defendant who collaterally challenges the alleged

deportation order must establish the following:

(1) [he] 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 [him] of

the opportunity for judicial review; and

(3) the entry of the order was fundamentally

unfair.

8 U.S.C. § 1326(d) (emphasis added); see also United States

v. Reyes-Bonilla, 671 F.3d 1036, 1043 n.4 (9th Cir. 2012),

cert. denied, 133 S. Ct. 322 (2012) (“Through the addition of

subsection (d) to [8 U.S.C. § 1326] in 1996, Congress

partially codified the Court’s decision in Mendoza–Lopez.”).

We conclude that Gonzalez-Villalobos has failed to show that

the deportation proceeding at which his deportation order was

issued improperly deprived him of the opportunity for
UNITED STATES V. GONZALEZ-VILLALOBOS 11

 Because we conclude that Gonzalez-Villalobos failed to carry his 6

burden with respect to 8 U.S.C. § 1326(d)(2), we do not reach his

argument that the IJ’s denial of an evidentiary hearing and failure to

suppress his conviction records resulted in the entry of an order that was

“fundamentally unfair.” See 8 U.S.C. § 1326(d)(3); see also supra note 5.

 Put another way, in such cases the defendant is excused from satisfying 7

(d)(1) and satisfies (d)(2). See, e.g., Ubaldo-Figueroa, 364 F.3d at 1050

(concluding that “although Ubaldo-Figueroa did not exhaust his

administrative remedies by appealing his removal order to the BIA in

1998, he is exempted from the exhaustion bar because his waiver of his

right to appeal was not sufficiently considered and intelligent,” and as a

result, he was “deprived of the opportunity for meaningful judicial

review” (internal quotation marks omitted)).

judicial review, as required by 8 U.S.C. § 1326(d)(2), and

therefore has not met his burden under § 1326(d).

6

A.

Although 8 U.S.C. § 1326(d)(1) and (d)(2) are separate

requirements, we have generally held that where an alien is

deprived of his right to appeal to the BIA, he satisfies both

(d)(1) and (d)(2). This makes sense, because an alien who

fails to exhaust his administrative remedies due to an error in

the underlying proceedings, satisfying (d)(1), will typically

also be deprived of the opportunity for judicial review,

satisfying (d)(2). See United States v. Pallares-Galan,

7

359 F.3d 1088, 1096 (9th Cir. 2004) (“Effective deprivation

of an alien’s administrative appeal serves to deprive him of

the opportunity for judicial review as well.”).

The cases in which we have determined that § 1326(d)(1)

and (d)(2) were satisfied can be divided into three

overlapping categories. First, we have held that § 1326(d)(1)

and (d)(2) are satisfied when the IJ failed to inform the alien
12 UNITED STATES V. GONZALEZ-VILLALOBOS

 We also have held that § 1326(d)(1) and (d)(2) are satisfied when the 8

government, rather than the IJ, misinforms an alien that he is ineligible for

relief. United States v. Arias-Ordonez, 597 F.3d 972, 977 (9th Cir. 2010)

(considering an order to report for removal that erroneously informed the

alien that “no administrative relief” was available to him, and noting that

it is “well established that § 1326(d)’s requirements of exhaustion and

deprivation of judicial review are satisfied when the government

misinforms an alien that he is ineligible for relief”).

that he had a right to appeal his deportation order to the BIA.

See Ubaldo-Figueroa, 364 F.3d at 1050 (“Ubaldo-Figueroa

was deprived of the opportunity for meaningful judicial

review because the IJ did not inform him of his right to

appeal his deportation order.”); Reyes-Bonilla, 671 F.3d at

1045 (same).

Second, we have held that an IJ’s failure to inform the

alien that he is eligible for a certain type of relief also

satisfies § 1326(d)(1) and (d)(2), because “an alien who is not

made aware of ‘his or her apparent eligibility’ for relief has

had no ‘meaningful opportunity to appeal’ the removal and

seek such relief.” United States v. Vidal-Mendoza, 705 F.3d

1012, 1015 (9th Cir. 2013) (citations omitted); see also

United States v. Lopez-Velasquez, 629 F.3d 894, 901 (9th Cir.

2010) (en banc) (holding that an IJ must “inform the alien of

a reasonable possibility that the petitioner may be eligible for

relief” (internal quotation marks omitted)). Thus, we held 8

that § 1326(d)(1) and (d)(2) were satisfied when the IJ

improperly characterized a prior conviction as an aggravated

felony and erroneously informed the alien that he was

ineligible for discretionary relief, Camacho-Lopez, 450 F.3d

at 930; Pallares-Galan, 359 F.3d at 1103; United States v.

Leon-Paz, 340 F.3d 1003, 1005–06 (9th Cir. 2003); when the

IJ did not inform the alien that he was eligible for voluntary

departure or failed to give him an opportunity to apply for
UNITED STATES V. GONZALEZ-VILLALOBOS 13

such relief, United States v. Melendez-Castro, 671 F.3d 950,

954 (9th Cir. 2012); United States v. Ortiz-Lopez, 385 F.3d

1202, 1204 n.2 (9th Cir. 2004); and when the IJ did not

inform the alien that he was eligible for relief under INA

§ 212(c), Ubaldo-Figueroa, 364 F.3d at 1049–50, or INA

§ 212(h), United States v. Arrieta, 224 F.3d 1076, 1079 (9th

Cir. 2000) (not discussing (d)(1) or (d)(2) specifically, but

concluding that because Arrieta was not informed of his

eligibility for a § 212(h) waiver, he was denied due process

and a meaningful opportunity for judicial review).

Third, when an alien has waived his right to appeal to the

BIA, he can nevertheless satisfy § 1326(d)(1) and (d)(2) by

showing that his waiver was not “considered and intelligent.”

Reyes-Bonilla, 671 F.3d at 1043; see also United States v.

Ramos, 623 F.3d 672, 682 (9th Cir. 2010) (concluding that

alien’s “waiver of his right to appeal . . . was procedurally

defective and deprived him of the opportunity for meaningful

judicial review,” thereby meeting his burden under 8 U.S.C.

§ 1326(d)(1) and (d)(2)). This category of cases often

overlaps with the prior two categories, since the IJ’s failure

to inform an alien of his right to appeal, or his eligibility for

relief, can form the basis of an invalid waiver of the right to

appeal. See, e.g., Ubaldo-Figueroa, 364 F.3d at 1048

(“Ubaldo-Figueroa’s waiver of his right to appeal his removal

order was not sufficiently ‘considered and intelligent’

because the IJ presiding over the removal proceeding failed

to inform him that he had the right to appeal his removal

order to the BIA.”); Pallares-Galan, 359 F.3d at 1096

(holding that an alien’s waiver of his right to appeal was not

“considered and intelligent” because the IJ erroneously told

him that he was ineligible for relief); Arrieta, 224 F.3d at

1079 (“Mr. Arrieta argues persuasively that he could not

make a considered and intelligent decision about his right to
14 UNITED STATES V. GONZALEZ-VILLALOBOS

 We do not suggest that these are the only situations in which an alien 9

can satisfy the requirements of 8 U.S.C. § 1326(d)(2). See, e.g., United

States v. Perez, 330 F.3d 97, 101 (2d Cir. 2003) (“Deprivation of the

opportunity for judicial review can be established by demonstrating

ineffective assistance of counsel, and the failure of counsel to file a

§ 212(c) application can constitute ineffective assistance of counsel.”). Cf.

United States v. Villavicencio-Burruel, 608 F.3d 556, 560 n.2 (9th Cir.

2010) (finding that 8 U.S.C. § 1326(d)(1) was not satisfied, and

distinguishing Perez on the ground that “counsel [in Perez] stated at the

deportation hearing that he ‘would file’ an application for relief and then

failed to do so in a timely fashion without informing his client, thus failing

to act as competent counsel,” whereas in Villavicencio-Burruel, the court

could not “conclude that the attorney exceeded her authority or failed to

act as competent counsel by not pursuing an appeal,” because the alien’s

attorney “reserved a right of appeal on his client’s behalf, but did not state

that she would file an appeal” and the record was “silent on whether

Villavicencio authorized or directed his attorney to file an appeal”).

appeal because the IJ never informed him of his eligibility for

a § 212(h) waiver.”).9

B.

Against this legal backdrop, we turn to GonzalezVillalobos’s challenge to the validity of the 1992 deportation

order. Here, unlike in the cases discussed above, we cannot

resolve 8 U.S.C. § 1326(d)(1) and (d)(2) in the same stroke.

Gonzalez-Villalobos has clearly satisfied 8 U.S.C.

§ 1326(d)(1) by showing that he appealed the IJ’s decision to

the BIA. But he has failed to show that “the deportation

proceedings at which the order was issued improperly

deprived [him] of the opportunity for judicial review,” as

required by 8 U.S.C. § 1326(d)(2). Unlike the errors

discussed above, the error that Gonzalez-Villalobos

alleges—the denial of an evidentiary hearing—is not an error
UNITED STATES V. GONZALEZ-VILLALOBOS 15

 In response to the court’s request for supplemental briefing on whether 10

Gonzalez-Villalobos had satisfied 8 U.S.C. § 1326(d)(2), GonzalezVillalobos also argued that he “[h]ypothetically . . . might have been

eligible for § 212(c) relief at the time of his immigration proceedings,”

and the IJ’s failure to advise him of such relief “may have” improperly

deprived him of the opportunity for judicial review. This argument was

not raised in Gonzalez-Villalobos’s opening brief and is therefore waived.

Even if it were not waived, Gonzalez-Villalobos has failed to identify any

facts that should have alerted the IJ to the possibility that he was eligible

for such relief. See Lopez-Velasquez, 629 F.3d at 900 (“[T]he IJ is not

required to advise an alien of possible relief when there is no factual basis

for relief in the record.”).

that, by its nature, affected his awareness of or ability to seek

judicial review.

Nor does Gonzalez-Villalobos allege an error so harmful

or pervasive that it altered the course of his deportation

proceedings such that he was effectively deprived of the

opportunity for judicial review. This is perhaps unsurprising,

given that Gonzalez-Villalobos did, in fact, seek judicial

review. After appealing the IJ’s decision to the BIA, he filed

a petition for a writ of habeas corpus in the United States

District Court for the Western District of Washington, which

he later dismissed. He does not argue that his ability to file

the habeas petition was constrained by the alleged error at his

deportation proceeding, nor does he argue that the error

caused him to raise inapposite arguments in the petition or

affected his decision to voluntarily withdraw the petition.

Instead, Gonzalez-Villalobos asks the court to find that he

was deprived of judicial review on the ground that he has a

right to “meaningful review of the underlying deportation,”

and in the absence of prior judicial review, is entitled to it

now.10
16 UNITED STATES V. GONZALEZ-VILLALOBOS

We decline to adopt Gonzalez-Villalobos’s argument,

which is based on a misreading of Mendoza-Lopez and

8 U.S.C. § 1326(d)(2). In Mendoza-Lopez, the Supreme

Court held that “where the defects in an administrative

proceeding foreclose judicial review of that proceeding, an

alternative means of obtaining judicial review must be made

available before the administrative order may be used to

establish conclusively an element of a criminal offense.”

481 U.S. at 838 (emphasis added). And the requirements of

8 U.S.C. § 1326(d) likewise make clear that it is not enough

for the defendant to show that “the entry of the order was

fundamentally unfair,” as required by (d)(3), and that he

exhausted his administrative remedies, as required by (d)(1);

he must also show that “the deportation proceedings at which

the order was issued improperly deprived [him] of the

opportunity for judicial review.” See 8 U.S.C. § 1326(d)(2).

In other words, where the defendant has failed to identify

any obstacle that prevented him from obtaining judicial

review of a deportation order, he is not entitled to such review

as part of a collateral attack under 8 U.S.C. § 1326(d). See

United States v. Adame-Orozco, 607 F.3d 647, 652 (10th Cir.

2010) (“There can be no genuine dispute that [the defendant]

received what process § 1326(d)(2) promises. He freely

admits that he was able to (and did) appeal the IJ’s

deportation order to the BIA, and he identifies no impediment

to his ability to appeal the BIA’s decision to a federal

court.”); see also United States v. Hinojosa-Perez, 206 F.3d

832, 836 (9th Cir. 2000) (holding that § 1326(d)(2) was not

satisfied where the defendant alleged a failure to provide

notice of his deportation hearing, because “the doors to the

courts were open to [the defendant’s] lack of notice due

process argument”).
UNITED STATES V. GONZALEZ-VILLALOBOS 17

 We do not suggest that the alleged error or obstacle in the deportation 11

proceedings that deprived a defendant of judicial review must be the same

as the alleged error or obstacle that made entry of the deportation order

fundamentally unfair. A defendant could conceivably collaterally attack

a prior deportation order by asserting that one defect in the prior

deportation proceedings made entry of the deportation order unfair (e.g.,

that he was unfairly precluded from presenting evidence demonstrating his

entitlement to relief) and a different obstacle or defect in the deportation

proceedings deprived him of judicial review (e.g., ineffective assistance

of counsel).

Although we have “interpreted [the] narrow criteria [of

§ 1326(d)] broadly,” Vidal-Mendoza, 705 F.3d at 1015, where

a defendant has fully exhausted his administrative remedies,

we conclude that the defendant must show an actual or

constructive inability to seek judicial review, related to an

alleged error or obstacle in the deportation proceedings, to

satisfy § 1326(d)(2). Gonzalez-Villalobos has failed to do 11

so here, and therefore has not met his burden pursuant to

8 U.S.C. § 1326(d)(2).

IV.

CONCLUSION

We conclude that Gonzalez-Villalobos failed to carry his

burden of showing that “the deportation proceedings at which

the [deportation] order was issued improperly deprived [him]

of the opportunity for judicial review,” and therefore his

collateral attack on the underlying deportation order cannot

be sustained. 8 U.S.C. § 1326(d)(2).

AFFIRMED.