United States v. Hernandez-Marquez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50852
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CESAR HERNANDEZ-MARQUEZ,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:19-CR-68-1

Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM:
*

Following a bench trial, Cesar Hernandez-Marquez was convicted of
illegal reentry after removal, a violation of 8 U.S.C. § 1326. He appeals the
denial of his motion to quash the indictment.
Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Hernandez-
Marquez argues that the notice to appear (NTA) that initiated his prior
removal proceeding was defective because the NTA did not specify a date and

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
May 26, 2020

Lyle W. Cayce
Clerk
Case: 19-50852 Document: 00515427684 Page: 1 Date Filed: 05/26/2020

No. 19-50852
2
time for the removal hearing. According to Hernandez-Marquez, his order of
removal and the subsequent reinstatement of that order of removal are invalid
because the NTA’s failure to specify a hearing date and time deprived the
immigration court of jurisdiction to order his removal.
The Government has filed a motion for summary affirmance, arguing
that Hernandez-Marquez’s challenge is foreclosed by United States v. Pedroza-
Rocha, 933 F.3d 490 (5th Cir. 2019), cert. denied, 2020 WL 2515686 (U.S. May
18, 2020) (No. 19-6588), and Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019),
cert. denied, 2020 WL 1978950 (U.S. Apr. 27, 2020) (No. 19-779). Summary
affirmance is proper if the position of one party 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).
The Government’s position is clearly right as a matter of law under
Pedroza-Rocha and Pierre-Paul. Hernandez-Marquez’s NTA was not defective
for failing to state a hearing date and time, and his order of removal based on
that NTA was not invalid for lack of jurisdiction. See Pedroza-Rocha, 933 F.3d
at 496-98; Pierre-Paul, 930 F.3d at 689-93. Thus, Hernandez-Marquez’s basis
for challenging his removal order is foreclosed. Accordingly, we need not
address his arguments about whether he otherwise met § 1326(d)’s
requirements for bringing a collateral attack on the removal order and whether
§ 1326(d) is unconstitutional.
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.
Case: 19-50852 Document: 00515427684 Page: 2 Date Filed: 05/26/2020