233 F. App'x 619

LEAVY, Circuit Judge,
concurring:
I concur with the exception of Section 1. Caudillo-Infante reserved his right to appeal, but did not exercise his right to appeal the removal order. Therefore, pursuant to 8 U.S.C. § 1326(d), he failed to exhaust his administrative remedy, and we are precluded from reaching the merits of his attack. According to the majority, Caudillo-Infante’s failure to exhaust his administrative appeal is treated as if Caudillo-Infante defectively waived his right to appeal, thus ignoring the requirements of § 1326(d).
The record discloses that the IJ explained to Caudillo-Infante the reasons why various avenues of relief from removal were unavailable to him. The record also discloses that the IJ explained to Caudillo-Infante the appeal paperwork, provided the forms, and advised him of the appeal deadline. Caudillo-Infante did not exercise his right to appeal within the thirty-day allotted time. Under 8 U.S.C. § 1326(d)(1), this failure is fatal to his collateral challenge. See United States v. Hinojosa-Perez, 206 F.3d 832, 835-36 (9th Cir.2000).
Under the majority’s approach, it becomes more advantageous for an alien to reserve the right to appeal and let his appeal time expire rather than affirmatively waive the right to appeal. If an alien knowingly waives his right to appeal, he cannot later collaterally attack the removal order. See United States v. Estrada-Torres, 179 F.3d 776, 780-81 (9th Cir.1999), overruled on other grounds by United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir.2001). The government bears the burden of proving a considered and intelligent waiver. See United States v. Lopez- Vasquez, 1 F.3d 751, 753-54 (9th Cir.1993). An alien can establish that his waiver was not considered and intelligent under the Due Process Clause of the Fifth Amendment if he can show, for example, that he was not personally informed of the right to appeal, or that the IJ failed to advise him of apparent eligibility to apply for relief from removal. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048-50 (9th Cir.2004); United States v. Muro-Inclan, 249 F.3d 1180, 1182-83 (9th Cir.2001).
By contrast, when the IJ personally advises the alien of the absence of avenues for relief and also of the right to appeal, and the alien reserves his right to appeal and fails to exercise that right within the alloted time, as Caudillo-Infante did in this case, the majority has proceeded directly and unnecessarily to a review of whether the IJ incorrectly advised Caudillo-Infante that there was no reasonable possibility that he was eligible for relief from removal. Administrative exhaustion has therefore become irrelevant and the mandate of 8 U.S.C. § 1326(d) has been ignored.
. 8 U.S.C. 1326(d): Limitation on collateral attack on underlying deportation order:
In a criminal proceeding under this section [reentry of removed aliens], an alien may not challenge the validity of the deportation order ... unless the alien demonstrates that — ■
(1) the alien 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 alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.

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