Case: 19-50745      Document: 00515223594         Page: 1    Date Filed: 12/04/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                    No. 19-50745                          December 4, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellant

v.

ARMANDO PEREZ-GAVALDON,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:19-CR-1740-1


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Armando Perez-Gavaldon was charged with illegal reentry following
removal, in violation of 8 U.S.C. § 1326. The district court granted Perez-
Gavaldon’s motion to dismiss the indictment, finding that in light of the
Supreme Court’s decision in Pereira v. Sessions, 

(2018), the
initial notice to appear in Perez-Gavaldon’s removal proceedings was defective
because it failed to specify the initial hearing’s time and date. The district court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 19-50745

held that the immigration court therefore lacked jurisdiction and that the
removal order was void. The Government appeals, arguing that the district
court’s dismissal of the indictment was erroneous in light of two cases we
decided while this appeal was pending, Pierre-Paul v. Barr, 

(5th
Cir. 2019), and United States v. Pedroza-Rocha, 

(5th Cir. 2019).
The Government also filed an unopposed motion for summary disposition.
      Pereira addressed 8 U.S.C. § 1229b, which provides that under certain
circumstances, an immigration judge may in her discretion cancel the
deportation of an illegal immigrant who has remained in the United States
continuously for ten years. 

–16. Section 1229b
provides that this period ends if the immigrant is given a “notice to appear” as
defined in another statutory provision. 

The Supreme Court held
that “a notice to appear that omits the time or place of the initial hearing” does
not fulfill this criterion and that therefore, the occupancy period of an
immigrant who has received such a notice to appear has not necessarily ended
for cancellation purposes. 

      In Pierre-Paul, we joined eight of our sister circuits in refusing to read
Pereira to mean a notice to appear that failed to identify the initial hearing’s
time and date was invalid as a charging 

–90
(citations omitted). In Pedroza-Rocha, we applied Pierre-Paul to reverse the
district court’s dismissal of an indictment charging the defendant under § 1326
based on a finding that the notice to appear failed to satisfy 

–93. We found that the notice to appear was not deficient and that any
deficiency would not have deprived the immigration court of jurisdiction. 

      Pedroza-Rocha is materially indistinguishable from the instant case.
Summary disposition is therefore appropriate. Groendyke Transp., Inc. v.



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                                  No. 19-50745

Davis, 

, 1162 (5th Cir. 1969) (summary disposition 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”).
      Accordingly, the Government’s motion for summary disposition is
GRANTED, and the judgment of the district court is REVERSED and
REMANDED for further proceedings. The Government’s alternative motion
for an extension of time to file a brief is DENIED as moot.




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