            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                                                            [DO NOT PUBLISH]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
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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


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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 immigration court, set forth only a claim-processing rule. Id. at

1155-57. Accordingly, this Court held the IJ and BIA properly exercised

jurisdiction over the petitioner’s removal hearing pursuant to their statutory

authority because any alleged defect in the petitioner’s NTA violated only a claim-

processing rule. Id. at 1157. Thus, Guillen’s argument the IJ did not have

jurisdiction over his removal proceeding fails.

      Second, Guillen failed to establish that he was deprived of an opportunity for

judicial review and that his removal proceedings before the immigration court were

fundamentally unfair. See 8 U.S.C. § 1326(d); United States v. Watkins, 880 F.3d


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1221, 1224 (11th Cir. 2018) (providing to challenge the validity of an underlying

deportation order in a criminal proceeding for illegal reentry, a defendant must

show all three of the following: (1) all available administrative remedies have been

exhausted; (2) the deportation proceedings deprived him of the opportunity for

judicial review; and (3) the deportation proceedings were fundamentally unfair).

Although Guillen asserts he was denied notice and an opportunity to be heard

during his original removal proceeding, the record reflects the NTA notified

Guillen that he could be ordered removed in absentia and that Guillen used an

opportunity to seek review of his order of removal by moving the IJ to reopen his

case. The IJ denied that motion to reopen in 2017, stating Guillen had “not

established improper notice [or] exceptional circumstances. It appears [Guillen]

knew [about] the hearing but was afraid to appear.” Thus, Guillen cannot establish

he was deprived of an opportunity for judicial review. See Watkins, 880 F.3d at

1224.

        Further, Guillen failed to argue in his initial appellate brief that he was

prejudiced by the NTA’s failure to specify the date and time of his hearing. See

United States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004) (stating arguments

raised for the first time in a reply brief are deemed abandoned). Thus, he has

abandoned that argument, and has failed to establish his removal proceeding was

fundamentally unfair. See United States v. Holland, 876 F.2d 1533, 1536 (11th


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Cir. 1989) (proving “fundamental unfairness requires a showing that specific errors

prejudiced the defendant”). An alien characterizing an underlying deportation as

fundamentally unfair must, at a minimum, demonstrate that the outcome of the

deportation proceeding would have been different but for a particular error.

Zelaya, 293 F.3d at 1298. Moreover, Guillen does not present any law suggesting

a removal order entered in absentia per se violates due process.

      Accordingly, the district court did not abuse its discretion in denying

Guillen’s motion to dismiss the indictment, and we affirm.

      AFFIRMED.




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