Case: 19-10902 Date Filed: 10/23/2019 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-10902 Non-Argument Calendar ________________________ D.C. Docket No. 0:18-cr-60253-BB-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JEREMIAS GUILLEN, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (October 23, 2019) Before TJOFLAT, WILLIAM PRYOR and BLACK, Circuit Judges. PER CURIAM: Jeremias Guillen, a citizen of El Salvador, appeals following his conviction Case: 19-10902 Date Filed: 10/23/2019 Page: 2 of 5 for illegally reentering the United States, in violation of 8 U.S.C. § 1326(a), (b)(2). He argues the district court erred in denying his motion to dismiss the indictment in his case because (1) the notice to appear (NTA) in his underlying immigration case did not specify the date and time of his removal hearing, causing the Immigration Judge (IJ) that ordered his underlying removal to have no jurisdiction over his removal proceedings, and (2) the order of removal which formed the basis for his criminal indictment was entered by an immigration court in absentia and in violation of his right to due process. After review, we affirm the district court. We review the district court’s denial of a motion to dismiss the indictment for abuse of discretion. United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir. 2002). For purposes of 8 U.S.C. § 1326, the existence of an underlying deportation order is an adjudicative fact to be proven by the government. See United States v. Henry, 111 F.3d 111, 113 (11th Cir. 1997). However, a defendant charged with violating that Section may collaterally challenge the validity of his underlying deportation order in the criminal proceeding, which is an issue of law to be reviewed de novo on appeal. United States v. Zelaya, 293 F.3d 1294, 1297 (11th Cir. 2002). Under the Immigration and Nationality Act, an individual may be ordered removed in absentia if he does not attend a removal proceeding after written notice has been provided. 8 U.S.C. § 1229a(b)(5)(A). An alien may seek to rescind an in 2 Case: 19-10902 Date Filed: 10/23/2019 Page: 3 of 5 absentia removal order by filing a motion to reopen at any time if he demonstrates that he did not receive proper notice of the removal proceedings. Id. § 1229a(b)(5)(C). A rescission order may be sought even after deportation. See Zelaya, 293 F.3d at 1297. First, Guillen’s argument regarding the IJ’s jurisdiction in his underlying removal hearing is foreclosed by our decision in Perez-Sanchez v. U.S. Attorney General, 935 F.3d 1148 (11th Cir. 2019). Construing 8 U.S.C. § 1229(a), this Court held that although an NTA is deficient if it fails to include both the time and place of removal proceedings, the statute’s time and place requirements do not operate as a jurisdictional rule. Id. at 1153-54. Similarly, this Court held that 8 C.F.R. § 1003.14, which stated jurisdiction vested with the IJ upon the filing of the NTA with the ...
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