REVISED December 30, 2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-50269

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CIRILO HERNANDEZ-REBOLLAR, also known as Cirilio HernandezRebollar, also known as Ciril Hernandez, also known as Cirrilo Hernandez,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:18-CR-311-1

Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Cirilo Hernandez-Rebollar appeals his conviction of illegal reentry into 

the United States. He entered a conditional guilty plea to the indictment, 

reserving the right to challenge the district court’s denial of his motion to 

 

* 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

December 27, 2019

Lyle W. Cayce

Clerk

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No. 19-50269

2

dismiss the indictment. The district court sentenced him to 30 months of 

imprisonment and three years of supervised release.

Now, Hernandez-Rebollar asserts, as he did in the district court, that his 

prior removal was invalid because the notice to appear which commenced the 

proceeding was defective for failing to specify a date and time for his removal 

hearing. He contends therefore that the removal order is void and that the 

Government cannot establish an essential element of the illegal reentry offense 

under 8 U.S.C. § 1326. He concedes that this challenge is foreclosed by United 

States v. Pedroza-Rocha, 933 F.3d 490 (5th Cir. 2019), petition for cert. filed 

(U.S. Nov. 6, 2019) (No. 19-6588), but he wishes to preserve the issue for 

further review. 

The Government has filed an unopposed motion for summary 

affirmance, agreeing that the issue is foreclosed under Pedroza-Rocha. 

Alternately, the Government requests an extension of time to file its 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).

Pedroza-Rocha concluded that the notice to appear was not deficient for 

failing to specify a date and time for the hearing, that any such alleged 

deficiency had not deprived the immigration court of jurisdiction, and that 

Pedroza-Rocha could not collaterally attack his notice to appear without first 

exhausting his administrative remedies. 933 F.3d at 496–98. Gomez-Lopez’s 

arguments are, as he concedes, foreclosed by this case. See id; see also PierrePaul v. Barr, 930 F.3d 684, 688-90 (5th Cir. 2019). Accordingly, the 

Government’s motion for summary affirmance is GRANTED, the 

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No. 19-50269

3

Government’s alternative motion for an extension of time to file a brief is 

DENIED, and the judgment of the district court is AFFIRMED.

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