Case: 19-10902 Date Filed: 10/23/2019 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-10902
Non-Argument Calendar
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D.C. Docket No. 0:18-cr-60253-BB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEREMIAS GUILLEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 23, 2019)
Before TJOFLAT, WILLIAM PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Jeremias Guillen, a citizen of El Salvador, appeals following his conviction
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for illegally reentering the United States, in violation of 8 U.S.C. § 1326(a), (b)(2).
He argues the district court erred in denying his motion to dismiss the indictment
in his case because (1) the notice to appear (NTA) in his underlying immigration
case did not specify the date and time of his removal hearing, causing the
Immigration Judge (IJ) that ordered his underlying removal to have no jurisdiction
over his removal proceedings, and (2) the order of removal which formed the basis
for his criminal indictment was entered by an immigration court in absentia and in
violation of his right to due process. After review, we affirm the district court.
We review the district court’s denial of a motion to dismiss
the indictment for abuse of discretion. United States v. Pendergraft,
297 F.3d
1198, 1204 (11th Cir. 2002). For purposes of 8 U.S.C. § 1326, the existence of an
underlying deportation order is an adjudicative fact to be proven by the
government. See United States v. Henry,
111 F.3d 111, 113 (11th Cir. 1997).
However, a defendant charged with violating that Section may collaterally
challenge the validity of his underlying deportation order in the criminal
proceeding, which is an issue of law to be reviewed de novo on appeal. United
States v. Zelaya,
293 F.3d 1294, 1297 (11th Cir. 2002).
Under the Immigration and Nationality Act, an individual may be ordered
removed in absentia if he does not attend a removal proceeding after written notice
has been provided. 8 U.S.C. § 1229a(b)(5)(A). An alien may seek to rescind an in
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absentia removal order by filing a motion to reopen at any time if he demonstrates
that he did not receive proper notice of the removal proceedings.
Id.
§ 1229a(b)(5)(C). A rescission order may be sought even after deportation. See
Zelaya, 293 F.3d at 1297.
First, Guillen’s argument regarding the IJ’s jurisdiction in his underlying
removal hearing is foreclosed by our decision in Perez-Sanchez v. U.S. Attorney
General,
935 F.3d 1148 (11th Cir. 2019). Construing 8 U.S.C. § 1229(a), this
Court held that although an NTA is deficient if it fails to include both the time and
place of removal proceedings, the statute’s time and place requirements do not
operate as a jurisdictional rule.
Id. at 1153-54. Similarly, this Court held that 8
C.F.R. § 1003.14, which stated jurisdiction vested with the IJ upon the filing of the
NTA with the immigration court, set forth only a claim-processing rule.
Id. at
1155-57. Accordingly, this Court held the IJ and BIA properly exercised
jurisdiction over the petitioner’s removal hearing pursuant to their statutory
authority because any alleged defect in the petitioner’s NTA violated only a claim-
processing rule.
Id. at 1157. Thus, Guillen’s argument the IJ did not have
jurisdiction over his removal proceeding fails.
Second, Guillen failed to establish that he was deprived of an opportunity for
judicial review and that his removal proceedings before the immigration court were
fundamentally unfair. See 8 U.S.C. § 1326(d); United States v. Watkins,
880 F.3d
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1221, 1224 (11th Cir. 2018) (providing to challenge the validity of an underlying
deportation order in a criminal proceeding for illegal reentry, a defendant must
show all three of the following: (1) all available administrative remedies have been
exhausted; (2) the deportation proceedings deprived him of the opportunity for
judicial review; and (3) the deportation proceedings were fundamentally unfair).
Although Guillen asserts he was denied notice and an opportunity to be heard
during his original removal proceeding, the record reflects the NTA notified
Guillen that he could be ordered removed in absentia and that Guillen used an
opportunity to seek review of his order of removal by moving the IJ to reopen his
case. The IJ denied that motion to reopen in 2017, stating Guillen had “not
established improper notice [or] exceptional circumstances. It appears [Guillen]
knew [about] the hearing but was afraid to appear.” Thus, Guillen cannot establish
he was deprived of an opportunity for judicial review. See
Watkins, 880 F.3d at
1224.
Further, Guillen failed to argue in his initial appellate brief that he was
prejudiced by the NTA’s failure to specify the date and time of his hearing. See
United States v. Levy,
379 F.3d 1241, 1244 (11th Cir. 2004) (stating arguments
raised for the first time in a reply brief are deemed abandoned). Thus, he has
abandoned that argument, and has failed to establish his removal proceeding was
fundamentally unfair. See United States v. Holland,
876 F.2d 1533, 1536 (11th
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Cir. 1989) (proving “fundamental unfairness requires a showing that specific errors
prejudiced the defendant”). An alien characterizing an underlying deportation as
fundamentally unfair must, at a minimum, demonstrate that the outcome of the
deportation proceeding would have been different but for a particular error.
Zelaya, 293 F.3d at 1298. Moreover, Guillen does not present any law suggesting
a removal order entered in absentia per se violates due process.
Accordingly, the district court did not abuse its discretion in denying
Guillen’s motion to dismiss the indictment, and we affirm.
AFFIRMED.
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