Summary
The Fifth Circuit affirmed a conviction for illegal reentry under 8 U.S.C. § 1326, holding that a notice to appear lacking the date and time of the removal hearing is not defective, any defect is cured by a subsequent notice of hearing, and the omission is not jurisdictional. The court relied on *United States v. Pedroza-Rocha* and *Pierre-Paul v. Barr* to reject the defendant's *Pereira v. Sessions* challenge, and granted the government's unopposed motion for summary affirmance.
Topics
Practice areas
Questions Presented
- Whether a notice to appear that lacks the date and time of the removal hearing invalidates the removal element of 8 U.S.C. § 1326.
Holdings
- The claim is foreclosed by Fifth Circuit precedent. A notice to appear lacking the date and time is not defective; any defect is cured by subsequent service of a notice of hearing; the defect is not jurisdictional; and the defendant cannot collaterally attack without exhausting administrative remedies.
Key quotations
“The Government has filed an unopposed motion for summary affirmance, which is proper 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[.]'” (Page 2-3)
Factual background
Guaman, a noncitizen, was previously removed from the United States after a removal proceeding. The notice to appear for his removal hearing did not include the date and time of the hearing. He later reentered the United States and was convicted of illegal reentry under 8 U.S.C. § 1326. He appealed, arguing that the defective notice to appear invalidated his removal.
Procedural history
Guaman pleaded guilty to illegal reentry under 8 U.S.C. § 1326(a) and (b)(1). He was sentenced. Separately, his supervised release was revoked. He appealed both. The government moved for summary affirmance.