USA v. Cirilo Rodriguez-Martin, No. 09-12387 (11th Cir. 2009)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT No. 09-12387 Non-Argument Calendar ________________________ Nov. 16, 2009 THOMAS K. KAHN 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, RodriguezMartin 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 2 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. 3
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