           Case: 19-10282   Date Filed: 10/17/2019   Page: 1 of 3


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-10282
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:17-cr-00226-ELR-LTW-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

MARCIAL ANTONIO HERNANDEZ-RUIZ,
a.k.a. Antonio H. Ruiz,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (October 17, 2019)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and GRANT, Circuit
Judges.

PER CURIAM:
              Case: 19-10282     Date Filed: 10/17/2019   Page: 2 of 3


      Marcial Hernandez-Ruiz immigrated to the United States from El Salvador

in 2002 and became a lawful permanent resident. In 2008 he was convicted of

child molestation and imprisoned for two years. He was then released into

immigration custody, where he was served with a notice to appear at a hearing for

removal proceedings. The notice did not specify the time or date of the hearing.

At the hearing, which Hernandez-Ruiz attended, the immigration judge ordered

him removed from the United States. And in July 2011, he was.

      But he returned. In 2017 Hernandez-Ruiz was arrested by immigration

officials in Georgia and indicted for illegal reentry after deportation. He moved to

dismiss the indictment based on a collateral attack of his 2011 deportation.

      Hernandez-Ruiz contended that the immigration judge in his 2011 removal

hearing lacked jurisdiction over his case. In Pereira v. Sessions, 138 S. Ct. 2105

(2018), the Supreme Court held that 8 U.S.C. § 1229 requires a notice to appear for

removal proceedings to state the time and date of the proceedings; otherwise the

notice is ineffective. Hernandez-Ruiz argued that the time and date requirement is

jurisdictional. Under his theory, because the notice to appear for his 2011 removal

hearing was ineffective, the immigration judge did not have jurisdiction to deport

him. Because the immigration judge lacked jurisdiction, the deportation was void.

And because the deportation was void, he could not have illegally reentered after

deportation. The district court disagreed and denied his motion to dismiss.


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                Case: 19-10282       Date Filed: 10/17/2019       Page: 3 of 3


Hernandez-Ruiz pleaded guilty to illegal reentry after deportation but preserved his

right to appeal the denial of his motion to dismiss. This is his appeal.

       Hernandez-Ruiz contends on appeal that the district court erred by holding

that the immigration judge had jurisdiction to deport him. A district court’s denial

of a motion to dismiss an indictment is reviewed for abuse of discretion. United

States v. Seher, 562 F.3d 1344, 1356 (11th Cir. 2009). In criminal cases we review

de novo collateral challenges to the validity of a removal order. United States v.

Watkins, 880 F.3d 1221, 1224 (11th Cir. 2018).

       After the parties submitted their briefs in this case, we issued an opinion

clarifying that the time and date requirement in § 1229 is a claim processing rule,

not a jurisdictional rule. Perez-Sanchez v. U.S. Attorney General, No. 18-12578,

— F.3d —, 2019 WL 3940873, at * 4–5 (11th Cir. August 21, 2019). Because it is

a claim processing rule, the immigration judge in Hernandez-Ruiz’s 2011 hearing

had jurisdiction to deport him.1 And thus the district court correctly denied

Hernandez-Ruiz’s motion to dismiss. AFFIRMED.



       1
          The district court also found, and the government here argues, that Hernandez-Ruiz
cannot prevail on a collateral challenge to the 2011 removal proceedings without proving that (1)
he exhausted the available administrative remedies, (2) he was deprived of an opportunity for
judicial review during the removal proceedings, and (3) the entry of the removal order was
fundamentally unfair. 8 U.S.C. § 1326(d). Hernandez-Ruiz contends that those requirements
don’t apply where the immigration judge lacks jurisdiction. We have not addressed the issue in a
published opinion. And we do not need to decide it here. Even if Hernandez-Ruiz can
collaterally attack his 2011 deportation, his attack fails because the immigration judge had
jurisdiction.
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