United States v. Miguel-Martin

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-51120
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TOMAS MIGUEL-MARTIN,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-132-1

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:
*

Tomas Miguel-Martin pleaded guilty to illegal reentry after having been
previously removed, in violation of 8 U.S.C. § 1326. He appeals the denial of
his motion to dismiss the indictment.
Miguel-Martin maintains that his order of removal was defective—and,
thus, his removal was void—because the notice to appear did not specify a date
and time for the removal hearing. He suggests that the invalidity of his

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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 28, 2020

Lyle W. Cayce
Clerk
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No. 19-51120
2
removal precludes it from being used to support his illegal-reentry conviction.
Miguel-Martin additionally asserts that he may attack collaterally his removal
order under § 1326(d) because the insufficiency of the notice to appear—which
invalidated the removal proceeding—excused him from having to establish
administrative exhaustion and deprivation of judicial review and rendered the
proceeding fundamentally unfair. He acknowledges that his arguments are
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), and indicates that he raises the issues to preserve
them for further review.
The Government agrees that the issues are foreclosed by Pedroza-Rocha
and Pierre-Paul and has filed an unopposed motion for summary affirmance.
Alternatively, the Government requests an extension of time to file a 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). In Pierre-Paul, this court determined that a notice to
appear that omits the date, time, or place of a removal hearing is not defective
and, in any event, the defect would not be jurisdictional. 930 F.3d at 689-93.
Applying Pierre-Paul, this court in Pedroza-Rocha concluded that the notice to
appear was not deficient, that the purported deficiency would not deprive the
immigration court of jurisdiction, and that the defendant had to exhaust his
administrative remedies before he could collaterally attack his removal order.
933 F.3d at 496-98. Therefore, the arguments that Miguel-Martin has asserted
on appeal are foreclosed. See Pedroza-Rocha, 933 F.3d at 496-98; Pierre-Paul,
930 F.3d at 689-93.
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No. 19-51120
3
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. The judgment of the district court is AFFIRMED.

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