United States v. Daniel Alvarez-Reyes ( 2020 )

Case: 19-51130 Document: 00515385135 Page: 1 Date Filed: 04/16/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-51130 April 16, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DANIEL ALVAREZ-REYES,
Defendant-Appellant
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: *
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
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 19-51130
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.
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No. 19-51130
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.
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