Opinion
No. 19-51130
04-16-2020
UNITED STATES OF AMERICA, Plaintiff-Appellee v. DANIEL ALVAREZ-REYES, Defendant-Appellant
Summary Calendar Appeal from the United States District Court for the Western District of Texas
USDC No. 3:19-CR-1589-1 Before CLEMENT, ELROD, and OLDHAM, Circuit Judges. PER CURIAM:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Following a bench trial with stipulated facts, Daniel Alvarez-Reyes was convicted for illegal reentry after removal in violation of 8 U.S.C. § 1326. He appeals the denial of his motion to dismiss the indictment.
He maintains that his order of removal was defective—and, thus, his removal was void—because the notice to appear did not specify a date and time for the removal hearing; he suggests that the invalidity of his removal precludes it from being used to support his illegal-reentry conviction. Moreover, he contends that he may attack collaterally his removal order under § 1326(d) because the insufficiency of the notice to appear—which invalidated the removal proceeding—excused him from having to establish administrative exhaustion and deprivation of judicial review and rendered the proceeding fundamentally unfair. He concedes that his arguments are foreclosed by United States v. Pedroza-Rocha, 933 F.3d 490 (5th Cir. 2019), petition for cert. filed (U.S. Nov. 6, 2019) (No. 19-6588), and Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019), petition for cert. filed (U.S. Dec. 16, 2019) (No. 19-779), and indicates that he raises the issues to preserve them for further review.
The Government agrees that the issues are foreclosed by Pedroza-Rocha and Pierre-Paul and has filed an unopposed motion for summary affirmance. Alternatively, the Government requests an extension of time to file a brief.
Summary affirmance is appropriate if "the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case." Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). In Pierre-Paul, this court determined that a notice to appear that omits the date, time, or place of a removal hearing is not defective and, in any event, the defect would not be jurisdictional. 930 F.3d at 689-93. Applying Pierre-Paul, this court in Pedroza-Rocha concluded that the notice to appear was not deficient, that the purported deficiency would not deprive the immigration court of jurisdiction, and that the defendant had to exhaust his administrative remedies before he could collaterally attack his removal order. 933 F.3d at 496-98. Thus, the arguments that Alvarez-Reyes has raised on appeal are foreclosed. See Pedroza-Rocha, 933 F.3d at 496-98; Pierre-Paul, 930 F.3d at 689-93.
Accordingly, the Government's motion for summary affirmance is GRANTED. The Government's alternative motion for an extension of time to file a brief is DENIED. The judgment of the district court is AFFIRMED.