### 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 Mi gu el

- 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 . H e suggests that the invalidity of his

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. 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: 05/28/2020No. 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 251568 6 (U.S. May 18, 2020 ) (No. 19

- 6588), and Pierre

Paul v. Barr , 930 F.3d 684 (5th Cir. 2019), cert. deni ed , 2020 WL 1978950 (U.S. Apr

. 27 , 20 20 ) (No. 19

- 779), and indicates that he raises the issues to preserve them for further review. The Government agre es 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 o f 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 noti ce to appear that omit s 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. 93 3 F.3d at 496

- 98. Therefore, the arguments that Miguel

- Martin has asserted on appeal are foreclosed. See Pedroza

- Roch a, 933 F.3d at 496

- 98; Pierre

- Paul , 930 F.3d at 689

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

- 51120

3 Accordingly, the Government’s motion for summary affirmance is GRANTED. The Go vernment’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