United States v. Bastide-Hernandez, No. 19-30006 (9th Cir. 2021)
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The Ninth Circuit filed (1) an order withdrawing its prior opinion and dissent and denying as moot a petition for rehearing en banc; and (2) a new opinion and concurrence reversing the district court's dismissal of an indictment charging illegal reentry after removal, in violation of 8 U.S.C. 1326, and remanding.
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), have created some confusion as to when jurisdiction actually vests, as neither squarely held that jurisdiction vests immediately upon the filing of a notice to appear (NTA), despite the language of the regulations. To clarify, the panel held that the regulation means what it says, and controls. The only logical way to interpret and apply Karingithi and Aguilar Fermin is that 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 also concluded that, while a defective NTA does not affect jurisdiction, it can create due-process violations. In order to mount a collateral attack on the validity of an underlying removal order under 8 U.S.C. 1326(d), the defendant must demonstrate that (1) he exhausted any available administrative remedies; (2) the deportation proceedings at which the order was issued improperly deprived him of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. Under United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021), each of these three statutory requirements is mandatory, and the first two requirements are not excused for a noncitizen who was removed for an offense that did not render him removable. On remand, defendant may be able to collaterally attack the underlying removal order.
Court Description: Criminal Law. The panel filed (1) an order withdrawing its prior opinion and dissent and denying as moot a petition for rehearing en banc; and (2) a new opinion and concurrence reversing the district court’s dismissal of an indictment charging illegal reentry after removal, in violation of 8 U.S.C. § 1326, and remanding. The indictment was based on an order of removal entered by an immigration court. The district court held that a defective notice to appear, lacking time and date information, did not provide the immigration court with jurisdiction to enter the removal order. 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 a notice to appear, 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 notice to appear does not affect jurisdiction, it can create due-process violations. To mount a collateral attack on the validity of an underlying removal order under 8 U.S.C. § 1326(d), the defendant must demonstrate that (1) he exhausted any UNITED STATES V. BASTIDE-HERNANDEZ 3 available administrative remedies; (2) the deportation proceedings at which the order was issued improperly deprived him of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. Under United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021), each of these three statutory requirements is mandatory, and the first two requirements are not excused for a noncitizen who was removed for an offense that did not render him removable. The panel left to the district court the question whether the defendant may be able to collaterally attack the underlying removal order on grounds other than the immigration judge’s lack of jurisdiction, should he again attack the removal order on remand. Concurring in the judgment, Judge M. Smith wrote that in light of Palomar-Santiago, he agreed with his colleagues that the defendant must satisfy the requirements of 8 US.C. § 1326(d) to obtain the relief he requests. His agreement, however, ended there. Judge M. Smith wrote that, in his view, Karingithi and Aguilar Fermin compelled the conclusion that the immigration court lacked jurisdiction to issue a removal order because the court never cured the omission of the date and time of the hearing from the defendant’s notice to appear. Accordingly, he would reverse the district court based only on the defendant’s failure to satisfy the requirements of § 1326(d).
This opinion or order relates to an opinion or order originally issued on February 2, 2021.
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