United States v. Aristides Rivera-Lopez ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4897
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARISTIDES RIVERA-LOPEZ, a/k/a Aristides Lopez-Rivera,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:18-cr-00381-LMB-1)
Submitted: March 24, 2020 Decided: April 6, 2020
Before MOTZ and WYNN, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Patrick L. Bryant, Appellate Attorney,
Cadence A. Mertz, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. G. Zachery Terwilliger,
United States Attorney, Aidan Taft Grano, Assistant United States Attorney, Shawn Flynn,
Special Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aristides Rivera-Lopez, a native and citizen of El Salvador, was convicted
following a bench trial of one count of illegal reentry after removal in violation of 8 U.S.C.
§ 1326(a) (2018). He was sentenced to time served. Rivera-Lopez appeals, challenging
the district court’s order denying his motion to dismiss his indictment. We affirm.
Rivera-Lopez argues that the removal order under which he was previously removed
from the United States was invalid because the notice to appear he received did not indicate
the time and date for his hearing. See Pereira v. Sessions, 138 S. Ct. 2105 (2018). He
therefore asserts that the removal order is void and cannot serve as a basis for his
conviction. As Rivera-Lopez concedes, however, this argument is squarely foreclosed by
our recent contrary ruling in United States v. Cortez, 930 F.3d 350, 362-65 (4th Cir. 2019)
(holding that failure of notice to appear to include a date and time for petitioner’s removal
hearing “does not implicate the immigration court’s adjudicatory authority or
‘jurisdiction’”). Rivera-Lopez next asserts that he may collaterally attack his removal order
without satisfying the requisite criteria set forth in 8 U.S.C. § 1326(d) (2018), because entry
of his removal order without proper jurisdiction was fundamentally unfair. As his
challenge to the immigration court’s jurisdiction is unfounded, Rivera-Lopez must meet
§ 1326(d)’s criteria to proceed with a collateral challenge to the removal order. See Cortez,
930 F.3d at 356-58.
Collateral attack on a removal order in an illegal reentry prosecution is allowed if
there was a “procedural flaw in the immigration proceeding” that prevented the noncitizen
from seeking review when the removal order was issued, in violation of due process.
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United States v. Moreno-Tapia, 848 F.3d 162, 169 (4th Cir. 2017). To launch a collateral
attack, a defendant must show: (1) he exhausted any administrative remedies that may have
been available to challenge the order of removal; (2) he was effectively deprived of his
right to judicial review of the removal order; and (3) the removal proceedings were
fundamentally unfair. 8 U.S.C. § 1326(d); see United States v. Mendoza-Lopez, 481 U.S.
828 (1987); United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005).
The record shows that Rivera-Lopez executed a stipulated request for order and
waiver of hearing in which he acknowledged receiving notice of his rights but waived
representation and a hearing. He admitted the factual basis for removal and agreed to
accept a written removal order. The document was read to him in Spanish by a Border
Patrol Agent who attested that Rivera-Lopez’s signature was voluntary, knowing, and
intelligent. In May 2004, he was found subject to removal based on these stipulations and
was ordered removed. Rivera-Lopez waived his right to appeal the decision and was
removed shortly thereafter. In light of these facts, we conclude that Rivera-Lopez cannot
meet the requirements of § 1326(d).
We accordingly affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
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