United States v. Jairo Naun Gayatn-Reyes

USCA11 Case: 22-11891 Document: 35-1 Date Filed: 02/14/2023 Page: 1 of 5 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-11891 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JAIRO NAUN GAYATN-REYES, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:21-cr-00100-RAL-CPT-1 ____________________ USCA11 Case: 22-11891 Document: 35-1 Date Filed: 02/14/2023 Page: 2 of 5 2 Opinion of the Court 22-11891 Before JORDAN, NEWSOM, and GRANT, Circuit Judges. PER CURIAM: Jairo Gayatn-Reyes appeals his conviction for illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a). He argues that the notice to appear (“NTA”) in his 2016 immigration proceed- ings was invalid because it didn’t state the time and location of his removal proceedings and that the immigration judge (“IJ”) there- fore lacked jurisdiction to order him removed from the United States. Gayatn-Reyes contends that because his underlying re- moval order was invalid, his conviction based on illegal reentry is likewise invalid, so we should vacate his conviction. After careful consideration, we conclude that he is wrong on both counts. We review de novo the legal question whether an indict- ment alleges an offense, but we review for abuse of discretion a district court’s denial of a motion to dismiss an indictment. United States v. Seher, 562 F.3d 1344, 1356 (11th Cir. 2009). We also re- view de novo the validity of an underlying deportation order in a § 1326 proceeding. United States v. Zelaya, 293 F.3d 1294, 1297 (11th Cir. 2002). An alien who has been removed from or has departed the United States while under an order of deportation or removal and thereafter “enters, attempts to enter, or is at any time found in, the United States . . . shall be fined under Title 18, or imprisoned not more than 2 years, or both.” 8 U.S.C. § 1326(a). In a criminal USCA11 Case: 22-11891 Document: 35-1 Date Filed: 02/14/2023 Page: 3 of 5 22-11891 Opinion of the Court 3 proceeding, the “alien may not challenge the validity of the depor- tation order” unless (1) he exhausted his administrative remedies; (2) the deportation proceedings “improperly deprived the alien of the opportunity for judicial review”; and (3) “the entry of the order was fundamentally unfair.” Id. § 1326(d). Gayatn-Reyes argues that § 1326(d)’s bar to challenging “the validity” of the previous order doesn’t apply to a jurisdictional de- fect, or, in the alternative, asks that we remand to the district court for a determination of whether he satisfied that provision’s three requirements. The district court didn’t address § 1326(d)’s applica- bility because it concluded that Gayatn-Reyes’s claim failed on the merits. We will likewise bypass the procedural issue and reach the merits. In immigration proceedings, “[j]urisdiction vests, and pro- ceedings before an [IJ] commence, when a charging document is filed with the Immigration Court.” 8 C.F.R. § 1003.14(a). One form of a charging document is an NTA. Id. …

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