United States v. Hernandez-Adame

Case: 21-51171 Document: 00516694132 Page: 1 Date Filed: 03/29/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 21-51171
Summary Calendar FILED
____________ March 29, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Lazaro Hernandez-Adame,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:19-CR-3548-1
______________________________
Before Stewart, Duncan and Wilson, Circuit Judges.
Per Curiam: *
Lazaro Hernandez-Adame appeals his bench trial convictions for two
counts of attempting to illegally reenter the United States following removal.
He argues that the district court erred in denying his motion to dismiss the
superseding indictment, which collaterally attacked the removal orders
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 21-51171
underlying the charged offenses under 8 U.S.C. § 1326(d). He also appeals
the denial of his motion for appointment of an expert in immigration law.
We review the district court’s denial of a motion to dismiss an
indictment de novo. United States v. Parrales-Guzman, 922 F.3d 706, 707
(5th Cir. 2019). An alien indicted for illegal reentry may collaterally attack
the underlying removal order. § 1326(d). Pursuant to § 1326(d), there are
“three prerequisites that defendants facing unlawful-reentry charges must
satisfy before they can challenge their original removal orders.” United States
v. Palomar-Santiago, 141 S. Ct. 1615, 1619 (2021). Those prerequisites are
“(1) the alien exhausted any administrative remedies that may have been
available to seek relief against the order; (2) the deportation proceedings at
which the order was issued improperly deprived the alien of the opportunity
for judicial review; and (3) the entry of the order was fundamentally unfair.”
Id. at 1619-20 (internal quotation marks and citation omitted). A contention
that the removal order was legally erroneous does not excuse compliance
with the mandatory exhaustion and denial of judicial review requirements.
Id. at 1622. When an alien fails to satisfy one of the requirements, the court
need not consider the others. Parrales-Guzman, 922 F.3d at 707.
With respect to Count 1, the district court determined that
Hernandez-Adame’s challenge to the December 2018 removal order lacked
merit because he failed to exhaust his administrative remedies; with respect
to Count 2, the district court determined that Hernandez-Adame failed to
establish that he had been denied the opportunity for judicial review of the
June 2015 removal order. Hernandez-Adame fails to show that either
determination is erroneous. See Palomar-Santiago, 141 S. Ct. at 1619-22.
We review the district court’s denial of a motion for expert services
for an abuse of discretion. United States v. Hardin, 437 F.3d 463, 468 (5th
Cir. 2006). “The burden is on the defendant to justify the authorization of
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[expert] services under [18 U.S.C.] § 3006A(e)(1), . . . demonstrating with
specificity the reasons why such services are required.” United States v.
Boyd, 773 F.3d 637, 642 (5th Cir. 2014) (internal quotation marks, brackets,
and citation omitted). Hernandez-Adame fails to demonstrate that the denial
of his motion for an immigration law expert was an abuse of discretion. See
United States v. Gentry, 941 F.3d 767, 784 (5th Cir. 2019).
The judgment of the district court is AFFIRMED. The
Government’s motion for us to take judicial notice of court records, which is
unopposed, is GRANTED. See Bauer v. Texas, 341 F.3d 352, 362 n.8 (5th
Cir. 2003). Its alternative motion to supplement the record is DENIED.
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