REVISED August 29, 2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50828

UNITED STATES OF AMERICA, 

 Plaintiff - Appellant

v.

CARLOS PEDROZA-ROCHA, 

 Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

Before KING, ELROD, and ENGELHARDT, Circuit Judges.

PER CURIAM:

The district court dismissed Carlos Pedroza-Rocha’s indictment for 

illegal reentry following removal under 8 U.S.C. § 1326, finding that the 

immigration judge in the underlying removal proceeding lacked jurisdiction. 

While this appeal was pending, this court issued an opinion in an analogous 

immigration appeal that forecloses the arguments advanced by Pedroza-Rocha

that were adopted by the district court below. For that reason, we REVERSE 

and REMAND.

United States Court of Appeals

Fifth Circuit

FILED

August 8, 2019

Lyle W. Cayce

Clerk

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I.

Defendant–appellee Carlos Pedroza-Rocha, a citizen of Mexico without 

lawful status in the United States, entered the country on or about March 12, 

2003. He was not admitted or paroled by an immigration officer. Shortly 

thereafter, Pedroza-Rocha pleaded guilty in Texas state court to the crime of

burglary of a habitation and was sentenced to ten years of community 

supervision. Around the same time, the Government issued Pedroza-Rocha a 

notice to appear (“NTA”) for removal proceedings before an immigration judge 

(“IJ”). The NTA informed Pedroza-Rocha that he was present in the United 

States without lawful status and was therefore removable. It also specified the 

place where Pedroza-Rocha was to appear, but not the date and time, instead 

stating only that the date and time were “to be set.” Around two months later, 

the immigration court issued a notice of hearing to Pedroza-Rocha, which 

specified the date and time for Pedroza-Rocha’s hearing. At the hearing, the IJ

ordered Pedroza-Rocha removed from the United States, and the resulting 

removal order (the “2003 Removal Order”) was entered on May 27, 2003. 

In 2009, Pedroza-Rocha was again discovered in the United States when 

he was arrested for drunk driving in El Paso, Texas. Shortly thereafter, 

Pedroza-Rocha pleaded guilty in federal court to illegally reentering the United 

States after removal in violation of 8 U.S.C. § 1326. He was sentenced to 10 

months in prison. Additionally, the state court revoked his term of community 

supervision for the 2003 burglary conviction, and it sentenced him to two years 

in prison on that charge. Following his release from state custody, the 

Government reinstated the 2003 Removal Order and removed Pedroza-Rocha 

to Mexico. In 2011 and again in 2015, Pedroza-Rocha unlawfully reentered the 

United States and was removed, again through reinstatement of the 2003 

Removal Order. 

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In May of 2017, after having been removed four times pursuant to the 

2003 Removal Order, Pedroza-Rocha was arrested for assault in El Paso. A 

federal grand jury thereafter indicted Pedroza-Rocha for illegal reentry under 

§ 1326. This case concerns that indictment. 

Pedroza-Rocha moved to dismiss the indictment, arguing that the 2003 

Removal Order could not support a conviction. Pointing to the recent Supreme 

Court decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), Pedroza-Rocha

argued that the NTA he received in 2003 (which resulted in the 2003 Removal 

Order) was invalid because it did not include a date and time for his hearing. 

Immigration regulations provide that jurisdiction vests upon the filing of a 

“charging document,” which includes an NTA. 8 C.F.R. §§ 1003.13-14.1 Thus, 

Pedroza-Rocha reasoned, the IJ in the 2003 proceeding lacked subject-matter 

jurisdiction, and the 2003 Removal Order was a nullity. 

The district court agreed with Pedroza-Rocha and dismissed the 

indictment. Citing Pereira, the district court held that the defect in the 2003 

NTA (the absence of a date and time for the removal hearing) divested the IJ 

of jurisdiction to enter the 2003 Removal Order. Because the IJ had no 

jurisdiction, the district court reasoned, each subsequent removal (each 

predicated on reinstatement of the 2003 Removal Order) was also invalid. The 

district court then concluded that, because the 2003 Removal Order was 

invalid, each time that Pedroza-Rocha was removed pursuant to the 2003 

Removal Order, he was not “removed” for purposes of § 1326, and therefore 

could not be convicted under that statute. The district court held, in the 

 

1 Section 1003.14(a) provides that “[j]urisdiction vests, and proceedings before an 

Immigration Judge commence, when a charging document is filed with the Immigration 

Court by the Service.” Section 1003.13, in turn, defines a “charging document” as “the written 

instrument which initiates a proceeding before an Immigration Judge,” including “a Notice 

to Appear, a Notice of Referral to Immigration Judge, and a Notice of Intention to Rescind 

and Request for Hearing by Alien.”

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alternative, that Pedroza-Rocha was permitted to collaterally attack under 

§ 1326(d) the 2003 Removal Order and each subsequent removal based on that

order. The district court therefore dismissed the indictment. The Government 

now appeals. During the pendency of this appeal, the Department of Homeland 

Security removed Pedroza-Rocha to Mexico. 

II.

A.

Pedroza-Rocha first argues that his deportation during the pendency of 

this appeal moots this case. This court has a continuing obligation to assure 

itself of its own jurisdiction, sua sponte if necessary. Bass v. Denney (In re 

Bass), 171 F.3d 1016, 1021 (5th Cir. 1999). Article III’s grant of federal 

jurisdiction requires a live controversy at all stages of a case. Campbell-Ewald 

Co. v. Gomez, 136 S. Ct. 663, 669 (2016). If the controversy between the parties 

is extinguished while a case is pending on appeal, this court must dismiss it as 

moot. Id. “A case becomes moot, however, ‘only when it is impossible for a court 

to grant any effectual relief whatever to the prevailing party.’” Id. (quoting 

Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012)).

This court has once before considered the question of whether a 

defendant’s removal moots the Government’s appeal from a district court’s

dismissal of an indictment. In United States v. Sarmiento-Rozo, 592 F.2d 1318 

(5th Cir. 1979), the defendants—Colombian nationals arrested on the high 

seas—had been indicted for attempting to import marijuana. Id. at 1319. The 

district court dismissed the indictment on the grounds that it lacked subjectmatter jurisdiction. Id. Shortly after the district court’s dismissal of the 

indictment, the defendants were removed to Colombia. Id. One question on 

appeal was whether the defendants’ removal mooted the case. The court held 

that it did. The court reasoned that if it were to conclude that the indictment 

was wrongly dismissed, it could not afford the Government any relief because 

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“[t]he defendants cannot be tried in absentia” because they “have a 

constitutional right to be present at their trial, to testify on their own behalf, 

and to confront the witnesses against them.” Id. at 1320. The court was 

unpersuaded by the Government’s contention that it would suffer collateral 

legal consequences (e.g., the district court decision being used as the law of the 

case in a parallel civil suit against the defendants) if the court failed to 

intervene, writing that “courts have been sensitive to the mere possibility of 

collateral consequences only in criminal cases following imposition of a 

criminal sanction.” Id. at 1321. In the case before it, however, the court 

explained that “there has been no criminal conviction and no equivalent 

restraint on the government’s ability to impose legal disabilities on the 

defendants.” Id. The court therefore vacated and remanded to the district court 

with instructions to dismiss the indictment as moot.

In the intervening years, the Supreme Court weighed in on this issue, 

albeit briefly in a footnote. In United States v. Villamonte-Marquez, 462 U.S. 

579 (1983), the defendants were convicted of various drug crimes, but the 

convictions were reversed on appeal on Fourth Amendment grounds. Id. at 

583-84. Before the case reached the Supreme Court, the defendants were 

deported and the charges against them were dismissed with the consent of the 

Government. Id. at 581 n.2. The defendants “briefly” argued that this mooted 

the case, citing Sarmiento-Rozo. Id. The Supreme Court acknowledged that 

Sarmiento-Rozo “provide[d] some authority for [the defendants’] argument” 

but nevertheless “reject[ed] the contention.” Id. The Court noted the 

“possibility that [the defendants] could be extradited and imprisoned for their 

crimes, or if [the defendants] manage to re-enter this country on their own they 

would be subject to arrest and imprisonment for these convictions.” Id. Since 

reversal of the appeals court’s judgment would reinstate that conviction, the 

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Court found it was in a position to afford relief to the Government with a 

favorable disposition and therefore found that a live controversy persisted. Id.

We read Villamonte-Marquez, at the very least, to severely undermine

Sarmiento-Rozo. First, the Court in Villamonte-Marquez acknowledged that 

Sarmiento-Rozo provided some support for the defendants’ argument, but 

nonetheless rejected that argument. 462 U.S. at 581 n.2. Second, the 

Villamonte-Marquez Court relied on the possibility of the defendants being 

extradited to the United States or returning to the United States to reach its 

conclusion that a live controversy existed in that case.2 This reasoning would 

have applied equally to the facts of Sarmiento-Rozo: similarly there, the 

Colombian defendants could have returned to the United States following 

deportation.

Pedroza-Rocha seeks to distinguish his case and Sarmiento-Rozo from 

Villamonte-Marquez by arguing that the former two cases involve an 

indictment, while the latter involved a conviction. We do not see this as a 

distinction with a difference. In either case, the Government suffers a concrete 

injury when the court refuses to intervene. If in this case, for example, the 

court dismisses this appeal as moot and Pedroza-Rocha returns, the 

Government will be required to once again present evidence to a grand jury 

and procure another indictment. This will require the expenditure of time and 

resources by the Government. Such an injury, whatever its likelihood, is 

sufficient under Villamonte-Marquez to create a live controversy despite 

defendant’s deportation. Cf. United States v. Suleiman, 208 F.3d 32, 38 (2d Cir. 

2000) (“Though arguably speculative, the possibilities of extradition or re-entry 

 

2 Pedroza-Rocha points out that Mexico’s extradition treaty with the United States 

makes it unlikely that he will be extradited from Mexico. Whatever the merits of that 

argument, it cannot be disputed that, given his history, Pedroza-Rocha may return to the 

United States for a sixth time.

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into the United States are precisely the kind of circumstances recognized in 

Villamonte–Marquez . . . as preventing deportation from mooting a 

Government criminal appeal seeking an enhanced sentence.”). Accordingly, 

Villamonte-Marquez dictates that a live controversy persists in this case.

At oral argument, counsel for Pedroza-Rocha contended that Spencer v. 

Kemna, 523 U.S. 1 (1998), requires this court to dismiss this case as moot, the 

above authorities notwithstanding. In that case, a habeas petitioner sought to 

challenge the revocation of his parole, even though he had been released from 

prison. Id. at 8. Arguing that a live controversy existed, Spencer noted that the 

revocation of his parole might be used to increase his sentence in a future 

criminal proceeding. Id. at 15. The Court rejected this argument, citing the 

established principle that mootness cannot be avoided by “general assertions 

or inferences that in the course of their activities respondents will be 

prosecuted for violating valid criminal laws.” Id. (quoting O’Shea v. Littleton, 

414 U.S. 488, 497 (1974)). Pedroza-Rocha seizes on this language, arguing that 

a controversy in this case cannot be premised on the assumption that he will 

violate the law by reentering the country. This reads Spencer too broadly. In 

Spencer, as well as the cases it relied upon, the party challenging governmental 

action sought to premise jurisdiction on the possibility that the challenger

might violate the law. Here, by contrast, the Government seeks to premise 

jurisdiction on the possibility that someone else may violate the law. As the 

Ninth Circuit has noted in rejecting this same argument on analogous facts, 

the Government in this case “is not seeking to benefit from future criminal 

behavior it can prevent.” United States v. Plancarte-Alvarez, 366 F.3d 1058, 

1063 (9th Cir. 2004). Instead, the Government “has no control over whether 

[Pedroza-Rocha] will choose to violate the laws of this country by reentry.” Id.

This distinction takes the case before us out of the principle of Spencer and 

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leaves it squarely within the ambit of Villamonte-Marquez. This case is not 

moot. 

B.

Turning to the merits, the Government argues that the district court 

erred in concluding that the lack of a date and time on Pedroza-Rocha’s 2003

NTA deprived the IJ of jurisdiction in the 2003 removal proceeding. This court 

reviews the district court’s ruling on a motion to dismiss an indictment de novo. 

United States v. Kay, 513 F.3d 432, 440 (5th Cir. 2007).

The initiation of removal proceedings under the Immigration and 

Nationality Act is governed by 8 U.S.C. § 1229. In relevant part, the statute 

provides that in such proceedings “written notice (in this section referred to as 

a ‘notice to appear’) shall be given in person to the alien.” Id. § 1229(a)(1). An 

NTA must include, inter alia, “[t]he time and place at which the proceedings 

will be held.” § 1229(a)(1)(G)(i). Title 8 of the Code of Federal Regulations, 

§ 1003.14, entitled “Jurisdiction and commencement of proceedings,”3 provides 

that “[j]urisdiction vests, and proceedings before an Immigration Judge 

commence, when a charging document is filed with the Immigration Court by 

the [Immigration and Naturalization] Service.” Id. § 1003.14(a). “Charging 

document,” in turn, “means the written instrument which initiates a 

proceeding before an Immigration Judge” and includes “a Notice to Appear, a 

Notice of Referral to Immigration Judge, and a Notice of Intention to Rescind 

and Request for Hearing by Alien.” Id. § 1003.13.

The statutory and regulatory requirements for a valid NTA in 

immigration proceedings differ from one another. As discussed, 8 U.S.C. § 1229 

requires that NTAs include, inter alia, the time and place of a hearing. By 

 

3 As explained below, our recent decision in Pierre-Paul held that, despite its title, 

§ 1003.14 does not set forth the prerequisites for an IJ’s jurisdiction. --- F.3d --- 2019 WL 

3229150 at *6 (5th Cir. July 18, 2019).

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contrast, the regulations, while mimicking several of the statutory 

requirements, do not mandate that the time of a hearing be included in an 

NTA. See 8 C.F.R. § 1003.15(b). But the regulations do require that the NTA 

include such information “where practicable.” Id. § 1003.18(b). In that same 

provision, the following sentence states, “If that information is not contained 

in the Notice to Appear, the Immigration Court shall be responsible for 

scheduling the initial removal hearing and providing notice to the government 

and the alien of the time, place, and date of hearing.” Id.

The Supreme Court addressed the statutory requirement that an NTA 

include date-and-time information in Pereira v. Sessions, 138 S. Ct. 2105 

(2018). Pereira concerned the so-called stop-time rule under the Illegal 

Immigration Reform and Immigration Responsibility Act of 1996 (“IIRIRA”). 

Id. at 2109-10. Under IIRIRA, the Attorney General has discretion to cancel 

the removal of certain nonpermanent residents, so long as they meet certain 

criteria. 8 U.S.C. § 1229b(b)(1). The criterion at issue in Pereira was the 

requirement that “the noncitizen must have ‘been physically present in the 

United States for a continuous period of not less than 10 years immediately 

preceding the date of [an] application’ for cancellation of removal.” Pereira, 138 

S. Ct. at 2110 (alteration in original) (quoting § 1229b(b)(1)(A)). Under the 

stop-time rule, that period ends “when the alien is served a notice to appear 

under section 1229(a) of this title.” Id. (quoting § 1229b(d)(1)(A)). At issue 

before the Supreme Court was whether the Government’s service of an NTA to 

Pereira stopped his period of continuous presence. Id. at 2113-14. As in this 

case, the Government failed to include the time and date of the removal 

proceedings in the NTA provided to Pereira, instead stating that both were “to 

be set.” Id. at 2112. 

The Supreme Court agreed with Pereira that the service of an NTA that 

lacked the information required under § 1229(a) did not stop the clock on his 

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period of continued presence. The Court determined that the “statutory text 

alone [was] enough to resolve” that question. Id. at 2114. Looking to the stoptime rule’s cross-reference to § 1229(a), the Court found that “the statute 

specifies where to look to find out what ‘notice to appear’ means.” Id. Because 

§ 1229(a) requires that time-and-place information be included on an NTA, the 

Court concluded that to trigger the stop-time rule, the Government must serve 

an NTA that, “at the very least, ‘specif[ies]’ the ‘time and place’ of the removal 

proceedings.” Id. (alteration in original). Thus, the Court concluded that the 

invalid NTA could not halt Pereira’s period of continuous presence for purposes 

of the stop-time rule. Id. at 2113-14.

The district court’s dismissal of the indictment below was based on its 

understanding that (1) for an IJ to have jurisdiction, the Government must 

have served the noncitizen with a valid NTA, as outlined in 8 C.F.R. §§ 1003.13 

and 1003.14, and (2) under Pereira, for an NTA to be “valid,” it must list a date 

and time. While this appeal was pending, this court issued an opinion 

addressing this precise argument in Pierre-Paul v. Barr, ---F.3d---, 2019 WL 

3229150 (5th Cir. July 18, 2019). The posture of Pierre-Paul is different from 

the case at bar, but the central legal issue is the same. Pierre-Paul was an 

appeal from a Board of Immigration Appeals decision affirming an IJ’s order 

of deportation. Id. at *3. Pierre-Paul challenged his deportation order arguing, 

inter alia, that the IJ lacked jurisdiction because the NTA in his case failed to 

include a date and time. Id. at *1-2. We rejected Pierre-Paul’s argument for 

“three independent reasons.”4

First, Pierre-Paul’s notice to appear was not defective. Second, 

assuming arguendo that the notice to appear were defective, the 

immigration court cured the defect by subsequently sending a 

notice of hearing that included the time and date of the hearing. 

 

4 As this court noted in Pierre-Paul, “alternative holdings are binding and not obiter 

dictum.” 2019 WL 3229150 at *3 n.2.

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Third, assuming arguendo that the notice to appear were defective 

and the defect could not be cured, 8 C.F.R. § 1003.14 is not 

jurisdictional. 

Id. at *3. 

Each of Pierre-Paul’s three alternative holdings renders the district 

court’s ruling in this case untenable. First, the Pierre-Paul court found that the 

NTA in that case was not defective under Pereira, despite its failure to include 

date-and-time information. Id. at *3-4. Since the district court here found the 

NTA wanting because of its failure to include a date and time, its decision was 

in error under Pierre-Paul. Second, the Pierre-Paul court held that the 

subsequent serving of a notice of hearing that includes a date and time cured 

any defect that might have existed in the NTA. Id. at *4-5. Here, PedrozaRocha was similarly served with a subsequent notice of hearing that did 

include a date and time. Thus, under Pierre-Paul, any alleged defect was cured

by the later service of a notice of hearing. Finally, the Pierre-Paul court held 

that § 1003.14 was not jurisdictional. Id. at *5-6. Pedroza-Rocha’s argument 

on appeal—like the district court’s holding below—relies on the premise that 

§ 1003.14 sets forth jurisdictional requirements. Otherwise, the failure to serve 

a valid NTA would amount to a ministerial, rather than jurisdictional, defect, 

and the error could be waived where, as here, the alien fails to raise it in the 

underlying proceeding. As a result, Pierre-Paul’s third alternative holding that 

§ 1003.14 is not jurisdictional forecloses Pedroza-Rocha’s jurisdictional 

argument as well. Accordingly, following Pierre-Paul, we conclude that the IJ 

in Pedroza-Rocha’s 2003 removal proceeding did not lack jurisdiction as a 

result of the Government’s failure to include a date and time on PedrozaRocha’s NTA. The district court therefore erred in dismissing the indictment 

and its judgment must be reversed.

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C.

We also hold that the district court should have denied the motion to 

dismiss the indictment because 8 U.S.C. § 1326(d) bars Pedroza-Rocha’s 

collateral attack on the validity of his removal order. See Pierre-Paul, 2019 WL 

3229150, at *3 n.2 (“In this circuit, alternative holdings are binding and not 

obiter dictum.”). As we explained in United States v. Parrales-Guzman, 922 

F.3d 706 (5th Cir. 2019), an alien seeking to collaterally attack the underlying 

removal order in a later reentry prosecution must show, inter alia, that he 

“exhausted any administrative remedies that may have been available to seek 

relief against the order.” Id. at 707 (quoting 8 U.S.C. § 1326(d)(1)). We then

held that Parrales-Guzman’s collateral attack failed because he did not 

exhaust all available administrative remedies by appealing or reopening the 

removal order. Id.

Pedroza-Rocha argues that § 1326(d) poses no bar in this case because 

the 2003 Removal Order was void ab initio, asserting once again that the IJ 

who issued the order lacked jurisdiction. We rejected substantially the same

argument in Parrales-Guzman. In that case, Parrales-Guzman argued that 

“§ 1326(d)’s bar on collateral attacks does not attach because [the] removal 

order was void ab initio as it rested on an unconstitutionally vague statute.” 

Id. We disagreed, writing that such an argument “upends Congress’s mandate 

that collateral review in the course of re-entry prosecutions be available only 

in a narrow set of circumstances.” Id.; see also Ross v. Blake, 136 S. Ct. 1850, 

1857 (2016) (“[J]udge-made exhaustion doctrines, even if flatly stated at first, 

remain amenable to judge-made exceptions. . . . But a statutory exhaustion 

provision stands on a different footing. There, Congress sets the rules—and 

courts have a role in creating exceptions only if Congress wants them to.”).

Despite having been advised of his right to appeal by the IJ, PedrozaRocha did not file an appeal with the Board of Immigration Appeals. Having 

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failed to exhaust all administrative remedies, Pedroza-Rocha is thus barred 

under 8 U.S.C. § 1326(d)(1) from collaterally attacking his removal order. 

Parrales-Guzman, 922 F.3d at 707. For this additional reason, the district 

court erred in granting Pedroza-Rocha’s motion to dismiss the indictment. 

III.

For the reasons set forth above, the judgment of the district court is 

REVERSED and the case is REMANDED for further proceedings consistent 

with this opinion. 

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