United States v. Tavarez-Palma

Case: 22-50613 Document: 00516685502 Page: 1 Date Filed: 03/22/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-50613 FILED
Summary Calendar March 22, 2023
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Armando Tavarez-Palma,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:22-CR-33-1
______________________________
Before Barksdale, Elrod, and Haynes, Circuit Judges.
Per Curiam: *
Jose Armando Tavarez-Palma, a Mexican national, pleaded guilty to
illegal reentry, in violation of 8 U.S.C. § 1326 (his third illegal-reentry
conviction), and was sentenced to, inter alia, 16-months’ imprisonment. For
the first time on appeal, Tavarez contends his conviction is invalid because
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50613 Document: 00516685502 Page: 2 Date Filed: 03/22/2023
No. 22-50613
the prior removal on which it was based—his April 2003 in absentia removal
order—was obtained in violation of his due-process rights. He asserts he:
was denied his due-process right to be present and heard at the April 2003
removal hearing; and could not have appeared at the hearing because he was
in juvenile detention from October 2001 until July 2003.
Tavarez (as he concedes) did not raise his collateral challenge to his
prior removal in district court. Therefore, review is only for plain error. E.g.,
United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that
standard, Tavarez must show a forfeited plain error (clear-or-obvious error,
rather than one subject to reasonable dispute) that affected his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes that
showing, we have the discretion to correct the reversible plain error, but
generally should do so only if it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings”. Id.There are multiple conditions an alien must satisfy prior to collaterally
challenging a prior removal in a criminal proceeding for illegal reentry. See 8
U.S.C. § 1326(d). Our precedent is clear that the alien must show actual
prejudice. E.g., United States v. Ramirez-Cortinas, 945 F.3d 286, 291 (5th Cir.
2019). To show prejudice under § 1326(d), the alien must show that “there
was a reasonable likelihood that but for the errors complained of the
defendant would not have been [removed]”. Id. at 292 (emphasis in original)
(citation omitted). “If despite the [alleged] errors, the proceeding could not
have yielded a different result, the deportation is valid for purposes of section
1326.” Id. (alternation in original) (citation omitted).
For the reasons that follow, Tavarez fails to demonstrate the requisite
actual prejudice. As a result, we decline to address the parties’ remaining
assertions. E.g., United States v. Mendoza–Mata, 322 F.3d 829, 832 (5th Cir.
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No. 22-50613
2003) (explaining where alien failed to satisfy “actual prejudice”
requirement, the court need not consider other conditions).
In support of his claim that, but for the due-process errors in his
removal proceedings, he would not have been removed, Tavarez maintains
he was removed based on invalid statutory grounds: he contends he was
ordered removed based on his 2001 conviction for a controlled-substance
offense under 8 U.S.C. § 1227(a)(2)(B)(i); and, because the case resulted in
a juvenile adjudication, it did not comprise a “conviction” subjecting him to
removal under that statute.
His assertion is factually frivolous. Tavarez was not removed because
of his juvenile conviction; rather, he was charged with removability, and
found removable, as an alien who entered the United States without
inspection or parole under 8 U.S.C. § 1182(a)(6)(A)(i). Tavarez offers no
basis, and points to no record evidence, that would dispute that charge or
support a claim for relief from removal. E.g., Yohey v. Collins, 985 F.2d 222,
224–25 (5th Cir. 1993) (explaining arguments must be briefed to be
preserved); Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986) (holding
counseled briefs are not entitled to liberal construction of pleadings). He
therefore fails to show the requisite clear-or-obvious error for his claim that,
but for the complained of due-process violation, he would not have been
removed. E.g., Ramirez-Cortinas, 945 F.3d at 292–93.
AFFIRMED.
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