FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit April 28, 2020 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 19-2078 (D.C. No. 2:18-CR-02739-KG-1) EMANUEL FERMAN, (D.N.M.) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before BRISCOE, McHUGH, and MORITZ, Circuit Judges. _________________________________ Emanuel Ferman appeals the district court’s order denying his motion to dismiss the indictment against him. For the reasons explained below, we affirm. Background Ferman became a lawful permanent resident of the United States in 1980. In 2004, Ferman pleaded guilty to sexual assault under Texas Penal Code § 22.011. As a result of that conviction, Ferman appeared before an immigration judge, who entered a removal order. See 8 U.S.C. § 1227(a)(2)(A)(ii)–(iii) (stating that being convicted of aggravated felony or two or more crimes of moral turpitude are removable offenses). He was * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. removed to Mexico on the same day. In 2012, Ferman reentered the United States and was convicted of illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). After serving a prison term for illegal reentry, Ferman was removed again in 2016. In 2018, Ferman again reentered the United States. A grand jury indicted Ferman for illegal reentry. See § 1326(a), (b). In response, Ferman moved to dismiss the indictment, arguing that the 2004 removal order was defective. The district court, adopting the magistrate judge’s report and recommendation with modifications, concluded that Ferman failed to exhaust available administrative remedies in connection with his 2004 removal order. Accordingly, the district court concluded that Ferman could not collaterally attack the 2004 removal order and thus denied Ferman’s motion to dismiss. Ferman then entered a conditional guilty plea, reserving his right to appeal the denial of his motion to dismiss. Ferman now appeals. Analysis We review de novo the legal sufficiency of a prior removal order. See United States v. Almanza-Vigil, 912 F.3d 1310, 1316 (10th Cir. 2019). “When the government prosecutes a noncitizen for illegal reentry, it typically must prove two things: (1) that the noncitizen left the United States with an outstanding order of removal against him and (2) that afterward, the noncitizen entered, tried to enter, or was found in the United States.” Id. A prior removal order is evidence of the first element. 1 Id. A defendant may 1 Although Ferman challenges the 2004 removal order, the 2018 indictment is predicated on Ferman’s 2016 removal and does not explicitly reference the 2004 order. Because the basis of the challenged indictment is the 2016 removal, it is unclear whether Ferman’s attack on the 2004 removal order, even if successful, would have any bearing 2 collaterally attack that prior removal order only in limited circumstances. See § ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals