UNITED STATES v. CERVANTES GONZALEZ (2019)

Juan Jose Cervantes-Gonzalez appeals his conviction for illegal reentry into the United States. He challenges the denial of his motion to dismiss the indictment 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 date for his removal hearing. He concedes that this challenge 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 has filed an unopposed motion for summary affirmance, agreeing that the issue is foreclosed under Pedroza-Rocha. Alternatively, the Government requests an extension of time to file its 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). This court concluded in Pedroza-Rocha that the notice to appear from the defendant’s prior removal proceedings was not deficient because it lacked a specific date for the hearing, that any such alleged deficiency had not deprived the immigration court of jurisdiction, and that the defendant could not collaterally attack his notice to appear without first exhausting his administrative remedies. 933 F.3d at 496-98. Cervantes-Gonzalez’s arguments are, as he concedes, foreclosed by Pedroza-Rocha. See id.

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, and the judgment of the district court is AFFIRMED.

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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.