United States v. Jesus Osorio-Abundio ( 2019 )

Case: 19-50383 Document: 00515231598 Page: 1 Date Filed: 12/11/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-50383 December 11, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
JESUS OSORIO-ABUNDIO,
Also Known as Jeremias Bonilla, Also Known as Jesus Osonrio-Abundis,
Defendant−Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 1:17-CR-80-1
Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jesus Osorio-Abundio appeals his conviction of illegal reentry into the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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.
Case: 19-50383 Document: 00515231598 Page: 2 Date Filed: 12/11/2019
No. 19-50383
United States. He challenges the denial of his motion to dismiss the indict-
ment as invalid, contending that his initial removal order was void for the
failure of the notice to appear in the initial removal proceedings to specify a
time and date for his removal hearing. He concedes that the issue is 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), but he wishes to preserve it for
further review. The government moves, unopposed, for summary affirmance,
agreeing that the issue is foreclosed by Pedroza-Rocha and Pierre-Paul v. Barr,
930 F.3d 684 (5th Cir. 2019).
In Pedroza-Rocha, 933 F.3d at 496−98 we concluded that the notice to
appear was not deficient for failure to specify a date and time for the hearing,
that any such deficiency had not deprived the immigration court of jurisdiction,
and that the petitioner could not collaterally attack his notice to appear with-
out first exhausting administrative remedies. Osorio-Abundio’s arguments
are, as he concedes, therefore foreclosed. See id. Because the government’s
position “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), the motion for summary affirmance is
GRANTED, the government’s alternative motion for an extension of time to
file a brief is DENIED, and the judgment is AFFIRMED.
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