UNITED STATES v. HERNANDEZ LOZANO (2020)

Omar Hernandez Lozano appeals his conviction for illegal reentry into the United States after removal subsequent to a felony conviction, in violation of 8 U.S.C. § 1326. He challenges the district court’s denial of his motion to dismiss the indictment as invalid, arguing that his initial removal order was void because the notice to appear in the removal proceedings failed to specify a date and time for his removal hearing. He concedes that this challenge is foreclosed by United States v. Pedroza-Rocha, 933 F.3d 490, 496-98 (5th Cir. 2019), petition for cert. filed (U.S. Nov. 6, 2019) (No. 19-6588), and Pierre-Paul v. Barr, 930 F.3d 684, 689-93 (5th Cir. 2019), petition for cert. filed (U.S. Dec. 16, 2019) (No. 19-779), 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 and Pierre-Paul.

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 Pedroza-Rocha, 933 F.3d at 496-98, this court applied Pierre-Paul to conclude that the notice to appear was not deficient for failing to specify a date and time for the hearing, that any such alleged deficiency had not deprived the immigration court of jurisdiction, and that Pedroza-Rocha could not collaterally attack his notice to appear without first exhausting his administrative remedies. Thus, as Hernandez Lozano concedes, his arguments are foreclosed. 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 as unnecessary, 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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.