USA v. Jose Felix-Felix, No. 19-50566 (5th Cir. 2019)
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Case: 19-50566 Document: 00515221571 Page: 1 Date Filed: 12/03/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 19-50566 Summary Calendar FILED December 3, 2019 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellant v. JOSE MANUEL FELIX-FELIX, Defendant-Appellee Appeal from the United States District Court for the Western District of Texas USDC No. 3:19-CR-1200-1 Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges. PER CURIAM: * Jose Manuel Felix-Felix was indicted on one charge of illegal reentry following removal, in violation of 8 U.S.C. § 1326. The district court granted his motion to dismiss the indictment after concluding that his removal order was invalid because his notice to appear did not include a specific time and date for his removal hearing. The Government appeals and moves for summary disposition, arguing that the district court’s dismissal of the 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 19-50566 Document: 00515221571 Page: 2 Date Filed: 12/03/2019 No. 19-50566 indictment was erroneous under United States v. Pedroza-Rocha, 933 F.3d 490 (5th Cir. 2019). Alternately, the Government moves for an extension of time in which to file a brief. Summary disposition 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 because it did not specify a date 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. These conclusions are contrary to those of the district court in this case and show that the district court erred by granting Felix-Felix’s motion to dismiss. See id. Accordingly, the Government’s motion for summary disposition is GRANTED, the Government’s alternative motion for an extension of time to file a brief is DENIED AS MOOT, the judgment of the district court is REVERSED, and this case is REMANDED to the district court for further proceedings. 2
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