United States v. Bastide-Hernandez, No. 19-30006 (9th Cir. 2021)
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The Ninth Circuit reversed the district court's dismissal of an indictment charging defendant with illegal reentry after removal in violation of 8 U.S.C. 1326. In this case, the district court held that a defective notice to appear (NTA) lacking time and date information did not provide the immigration court with jurisdiction to enter an order of removal.
The panel explained that Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), and Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020), created some confusion as to when jurisdiction actually vests. To clarify, the panel held that 8 C.F.R. 1003.14(a) means what it says and controls: the jurisdiction of the immigration court vests upon the filing of an NTA, even one that does not at that time inform the alien of the time, date, and location of the hearing. The panel further explained that while a defective NTA does not affect jurisdiction, it can create due-process violations. In defendant's brief, he chose not to address the requirements under section 1326(d) for a collateral attack on the validity of the underlying removal, and thus he failed to satisfy the section 1326(d) requirements based on the NTA's lack of date and time information. On remand, defendant may be able to collaterally attack the underlying removal order, if he can meet the requirements of section 1326(d).
Court Description: Criminal Law. The panel reversed the district court’s dismissal of an indictment charging illegal reentry after removal in violation of 8 U.S.C. § 1326, and remanded, in a case in which the district court held that a defective notice to appear (NTA) lacking time and date information did not provide the immigration court with jurisdiction to enter an order of removal. Observing that Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), and Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020), created some confusion as to when jurisdiction actually vests, the panel held that 8 C.F.R. § 1003.14(a) means what it says and controls: the jurisdiction of the immigration court vests upon the filing of an NTA, even one that does not at that time inform the alien of the time, date, and location of the hearing. The panel wrote that while a defective NTA does not affect jurisdiction, it can create due-process violations. The panel wrote that because the defendant chose not to address in his brief any of the requirements under 8 U.S.C. § 1326(d) for a collateral attack on the validity of the underlying removal, he failed to show that he can satisfy the § 1326(d) requirements based on the NTA’s lack of date and time information. The panel wrote that on remand, which is required because the basis for the district court’s dismissal was invalid, the defendant may be able to collaterally attack UNITED STATES V. BASTIDE-HERNANDEZ 3 the underlying removal order on other grounds if he can meet the requirements of § 1326(d). Dissenting, Judge M. Smith wrote that Karingithi and Aguilar Fermin compel the conclusion that dismissal of the indictment was proper because the immigration court never cured the omission of the date and time of the hearing from the NTA, thereby depriving the immigration court of jurisdiction to issue a removal order.
The court issued a subsequent related opinion or order on July 12, 2021.
The court issued a subsequent related opinion or order on December 29, 2021.
The court issued a subsequent related opinion or order on July 11, 2022.
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