United States v. Valente Duran-Garcia

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 4, 2020
• Docket: 19-51101
• Status: Unpublished

Opinion

Case: 19-51101 Document: 00515440128 Page: 1 Date Filed: 06/03/2020

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

FILED No. 19-51101 June 3, 2020 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

VALENTE DURAN-GARCIA,

Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 1:19-CR-183-1

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges. PER CURIAM: * Valente Duran-Garcia appeals his guilty-plea conviction for being found illegally in the United States. He argues that the district court erred by denying his motion to dismiss his indictment for lack of subject matter jurisdiction. Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Duran-Garcia argues that the notice to appear (NTA) that initiated his prior removal

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 19-51101 Document: 00515440128 Page: 2 Date Filed: 06/03/2020

No. 19-51101

proceedings was defective because it did not specify a date and time for the removal hearing. According to Duran-Garcia, the removal order upon which his indictment is based is invalid because the NTA failed to specify a hearing date and time, thereby depriving the immigration court of jurisdiction. The Government has filed a motion for summary affirmance, arguing that Duran-Garcia’s 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), 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 is correct, and Duran-Garcia concedes, that his arguments are foreclosed. See Pedroza-Rocha, 933 F.3d at 496-98; Pierre-Paul, 930 F.3d at 689-93. The NTA was not defective for failing to state a hearing date and time, and the order of removal forming the basis of Duran-Garcia’s indictment was not invalid for lack of jurisdiction. See Pedroza-Rocha, 933 F.3d at 496-98; Pierre-Paul, 930 F.3d at 689-93. 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.