United States v. Cirilo Rodriguez-Martin , 353 F. App'x 217 ( 2009 )

[DO NOT PUBLISH]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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