     Case: 19-50852      Document: 00515427684         Page: 1    Date Filed: 05/26/2020




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

                                                                                FILED
                                    No. 19-50852                            May 26, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CESAR HERNANDEZ-MARQUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:19-CR-68-1


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Following a bench trial, Cesar Hernandez-Marquez was convicted of
illegal reentry after removal, a violation of 8 U.S.C. § 1326. He appeals the
denial of his motion to quash the indictment.
       Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Hernandez-
Marquez argues that the notice to appear (NTA) that initiated his prior
removal proceeding was defective because the NTA did not specify a date and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50852     Document: 00515427684     Page: 2   Date Filed: 05/26/2020


                                  No. 19-50852

time for the removal hearing. According to Hernandez-Marquez, his order of
removal and the subsequent reinstatement of that order of removal are invalid
because the NTA’s failure to specify a hearing date and time deprived the
immigration court of jurisdiction to order his removal.
      The Government has filed a motion for summary affirmance, arguing
that Hernandez-Marquez’s challenge is 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). 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’s position is clearly right as a matter of law under
Pedroza-Rocha and Pierre-Paul. Hernandez-Marquez’s NTA was not defective
for failing to state a hearing date and time, and his order of removal based on
that NTA was not invalid for lack of jurisdiction. See Pedroza-Rocha, 933 F.3d
at 496-98; Pierre-Paul, 930 F.3d at 689-93. Thus, Hernandez-Marquez’s basis
for challenging his removal order is foreclosed.      Accordingly, we need not
address his arguments about whether he otherwise met § 1326(d)’s
requirements for bringing a collateral attack on the removal order and whether
§ 1326(d) is unconstitutional.
      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.




                                        2
