United States v. Jairo Naun Gayatn-Reyes

USCA11 Case: 22-11891 Document: 35-1 Date Filed: 02/14/2023 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11891
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIRO NAUN GAYATN-REYES,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cr-00100-RAL-CPT-1
____________________
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2 Opinion of the Court 22-11891
Before JORDAN, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
Jairo Gayatn-Reyes appeals his conviction for illegal reentry
into the United States, in violation of 8 U.S.C. § 1326(a). He argues
that the notice to appear (“NTA”) in his 2016 immigration proceed-
ings was invalid because it didn’t state the time and location of his
removal proceedings and that the immigration judge (“IJ”) there-
fore lacked jurisdiction to order him removed from the United
States. Gayatn-Reyes contends that because his underlying re-
moval order was invalid, his conviction based on illegal reentry is
likewise invalid, so we should vacate his conviction. After careful
consideration, we conclude that he is wrong on both counts.
We review de novo the legal question whether an indict-
ment alleges an offense, but we review for abuse of discretion a
district court’s denial of a motion to dismiss an indictment. United
States v. Seher, 562 F.3d 1344, 1356 (11th Cir. 2009). We also re-
view de novo the validity of an underlying deportation order in a
§ 1326 proceeding. United States v. Zelaya, 293 F.3d 1294,
1297 (11th Cir. 2002).
An alien who has been removed from or has departed the
United States while under an order of deportation or removal and
thereafter “enters, attempts to enter, or is at any time found in, the
United States . . . shall be fined under Title 18, or imprisoned not
more than 2 years, or both.” 8 U.S.C. § 1326(a). In a criminal
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22-11891 Opinion of the Court 3
proceeding, the “alien may not challenge the validity of the depor-
tation order” unless (1) he exhausted his administrative remedies;
(2) the deportation proceedings “improperly deprived the alien of
the opportunity for judicial review”; and (3) “the entry of the order
was fundamentally unfair.” Id. § 1326(d).
Gayatn-Reyes argues that § 1326(d)’s bar to challenging “the
validity” of the previous order doesn’t apply to a jurisdictional de-
fect, or, in the alternative, asks that we remand to the district court
for a determination of whether he satisfied that provision’s three
requirements. The district court didn’t address § 1326(d)’s applica-
bility because it concluded that Gayatn-Reyes’s claim failed on the
merits. We will likewise bypass the procedural issue and reach the
merits.
In immigration proceedings, “[j]urisdiction vests, and pro-
ceedings before an [IJ] commence, when a charging document is
filed with the Immigration Court.” 8 C.F.R. § 1003.14(a). One
form of a charging document is an NTA. Id. § 1003.13. Under INA
§ 239(a), 8 U.S.C. § 1229(a), a noncitizen facing deportation “shall
be given in person” a “written notice” containing several state-
ments, including, in relevant part, “[t]he time and place at which
the proceedings will be held.” INA § 239(a)(1)(G)(i), 8 U.S.C.
§ 1229(a)(1)(G)(i). In Pereira, the Supreme Court held that a notice
that fails to inform the noncitizen of the time and place of his re-
moval proceedings is deficient and does not qualify as an NTA un-
der § 1229(a) for purposes of the stop-time rule for cancellation of
removal. Pereira v. Sessions, 138 S. Ct. 2105, 2114 (2018).
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4 Opinion of the Court 22-11891
An NTA’s deficiencies, however, don’t always deprive an IJ
of jurisdiction over removal proceedings. In Perez-Sanchez, the
petitioner sought our review to determine whether the IJ who or-
dered his removal had jurisdiction over his case when the NTA he
was issued didn’t include the time or date of his removal hearing.
Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1150 (11th Cir.
2019). Based on Pereira and § 1229(a)’s definition of an NTA, he
argued that a notice lacking the time and date of his removal pro-
ceedings wasn’t a proper NTA for jurisdictional purposes, and that
an IJ reviewing his case based on that flawed NTA therefore lacked
jurisdiction over his entire removal proceeding. Id. at 1153. We
held, however, that § 1003.14(a) and § 1229(a) created only a claim-
processing rule regarding an NTA’s service and filing. Id. at 1155–
57. Therefore, even though the petitioner’s notice was deficient
for lack of a date and time of the removal proceedings, the IJ still
had jurisdiction over the removal proceedings. Id. at 1157.
After Perez-Sanchez, the Supreme Court weighed in on the
necessary components of an NTA. In Niz-Chavez v. Garland, the
Court held that the stop-time rule may be triggered only by a single
document that contains all of the information required to be in an
NTA. 141 S. Ct. 1474, 1486 (2021). Although Niz-Chavez discusses
§ 1229(a) and NTA compliance, it does not squarely control the ju-
risdictional issue that Gayatn-Reyes raises here, nor does it abro-
gate this Court’s decision in Perez-Sanchez. Compare Niz-Chavez,
141 S. Ct. at 1479, 1484, with Perez-Sanchez, 935 F.3d at 1155–57.
After Niz-Chavez, we reiterated that the NTA requirements in
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22-11891 Opinion of the Court 5
8 U.S.C. § 1229(a) are not jurisdictional and, instead, “set[] forth
only a claim-processing rule.” Farah v. U.S. Att’y Gen., 12 F.4th
1312, 1322 (11th Cir. 2021) (quoting Perez-Sanchez, 935 F.3d at
1154–55).
As Gayatn-Reyes conceded in his initial brief, we are bound
by Perez-Sanchez. In his reply brief, Gayatn-Reyes argues that,
upon further review, that decision does not control for various rea-
sons. Unfortunately, he raised that argument too late. By not rais-
ing that argument in his initial brief, Gayatn-Reyes abandoned it.
In any event, contrary to the position he takes in his reply brief,
Gayatn-Reyes’s argument that the IJ in his 2016 immigration pro-
ceedings lacked jurisdiction over him to order him removed be-
cause the NTA was invalid is in fact foreclosed by Perez-Sanchez,
which is prior panel precedent. Thus, Gayatn-Reyes’s conviction
under § 1326(a) was proper.
AFFIRMED.