IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-51120

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TOMAS MIGUEL-MARTIN,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:19-CR-132-1

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.

PER CURIAM:*

Tomas Miguel-Martin pleaded guilty to illegal reentry after having been 

previously removed, in violation of 8 U.S.C. § 1326. He appeals the denial of 

his motion to dismiss the indictment. 

Miguel-Martin maintains that his order of removal was defective—and, 

thus, his removal was void—because the notice to appear did not specify a date 

and time for the removal hearing. He suggests that the invalidity of his 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

May 28, 2020

Lyle W. Cayce

Clerk

 Case: 19-51120 Document: 00515432423 Page: 1 Date Filed: 05/28/2020
No. 19-51120

2

removal precludes it from being used to support his illegal-reentry conviction. 

Miguel-Martin additionally asserts that he may attack collaterally his removal 

order under § 1326(d) because the insufficiency of the notice to appear—which 

invalidated the removal proceeding—excused him from having to establish

administrative exhaustion and deprivation of judicial review and rendered the 

proceeding fundamentally unfair. He acknowledges that his arguments are

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 PierrePaul v. Barr, 930 F.3d 684 (5th Cir. 2019), cert. denied, 2020 WL 1978950 (U.S. 

Apr. 27, 2020) (No. 19-779), and indicates that he raises the issues to preserve 

them for further review. 

The Government agrees that the issues are foreclosed by Pedroza-Rocha

and Pierre-Paul and has filed an unopposed motion for summary affirmance. 

Alternatively, the Government requests an extension of time to file a brief.

Summary affirmance is appropriate if “the position of one of the parties 

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). In Pierre-Paul, this court determined that a notice to 

appear that omits the date, time, or place of a removal hearing is not defective

and, in any event, the defect would not be jurisdictional. 930 F.3d at 689-93. 

Applying Pierre-Paul, this court in Pedroza-Rocha concluded that the notice to 

appear was not deficient, that the purported deficiency would not deprive the

immigration court of jurisdiction, and that the defendant had to exhaust his 

administrative remedies before he could collaterally attack his removal order. 

933 F.3d at 496-98. Therefore, the arguments that Miguel-Martin has asserted 

on appeal are foreclosed. See Pedroza-Rocha, 933 F.3d at 496-98; Pierre-Paul, 

930 F.3d at 689-93. 

 Case: 19-51120 Document: 00515432423 Page: 2 Date Filed: 05/28/2020
No. 19-51120

3

Accordingly, 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. The judgment of the district court is AFFIRMED. 

 Case: 19-51120 Document: 00515432423 Page: 3 Date Filed: 05/28/2020