USA V. JUAN BASTIDE-HERNANDEZ, No. 19-30006 (9th Cir. 2022)
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The United States appealed from the district court’s dismissal of an indictment charging Defendant with illegal reentry after removal, in violation of 8 U.S.C. Section 1326. According to the district court, defects in the notice to appear (“NTA”)—which initiated the immigration proceedings against Defendant resulting in his eventual removal from the United States— deprived the immigration court of subject matter jurisdiction to effect the removal in the first place, rendering the entire immigration proceeding “void ab initio.”
The Ninth Circuit held, consistent with precedent and that of every other circuit to consider this issue, that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus the defendant’s removal was not “void ab initio,” as the district court determined.
The court explained that hat 8 C.F.R. Section 1003.14(a)—a regulation by which the Attorney General purported to condition the “jurisdiction” of immigration courts upon the filing of a charging document, including NTAs—is a claim-processing rule not implicating the court’s adjudicatory authority. The en banc court read Section 1003.14(a)’s reference to “jurisdiction” in a purely colloquial sense. The en banc court wrote that although the statutory definition of an NTA requires the date and time of the removal hearing, 8 U.S.C. Section 1229(a)(1)(G)(i), this provision chiefly concerns the notice the government must provide noncitizens regarding their removal proceedings, not the authority of immigration courts to conduct those proceedings.
Court Description: Criminal Law. The en banc court reversed the district court’s dismissal of an indictment charging illegal reentry after removal in violation of 8 U.S.C. § 1326, and remanded for further proceedings, in a case in which the district court determined that defects in the notice to appear (“NTA”)—which initiated the immigration proceedings against the defendant resulting in his eventual removal from the United States— deprived the immigration court of subject matter jurisdiction to effect the removal in the first place, thereby rendering the entire immigration proceeding “void ab initio.” Consistent with Ninth Circuit precedent and that of every other circuit to consider this issue, the en banc court held that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus the defendant’s removal was not “void ab initio,” as the district court determined. The en banc court explained that 8 C.F.R. § 1003.14(a)—a regulation by which the Attorney General purported to condition the “jurisdiction” of immigration courts upon the filing of a charging document, including NTAs—is a claim-processing rule not implicating the court’s adjudicatory authority. The en banc court read § 1003.14(a)’s reference to “jurisdiction” in a purely colloquial sense. The en banc court wrote that although the statutory definition of an NTA requires the date and time of UNITED STATES V. BASTIDE-HERNANDEZ 3 the removal hearing, 8 U.S.C. § 1229(a)(1)(G)(i), this provision chiefly concerns the notice the government must provide noncitizens regarding their removal proceedings, not the authority of immigration courts to conduct those proceedings. The panel concluded that the import of the holding in this case, in concert with that in Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), is thus that § 1003.14(a) is a nonjurisdictional claim-processing rule, and the filing of an undated NTA that is subsequently supplemented with a notice of hearing fully complies with the requirements of that regulation. Concurring in the judgment, Judge Friedland wrote separately to urge the Government to adhere to the statutory requirements for the NTA. She wrote that there is a strong argument that a transitional provision in the Illegal Immigration Reform and Immigrant Responsibility Act shows that Congress intended service of the NTA to be a jurisdictional requirement. She encouraged the Government to redouble its efforts to comply with the statute—both to minimize disruption to immigration proceedings in the event the Supreme Court disagrees with the court’s holding today, and because providing the required information at the outset better serves clarity, efficiency, and due process in any event. Judge Collins concurred in the majority opinion in all respects except for footnote 10, which remands “for the district court to reconsider its § 1326(d) analysis” in light of United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021). He wrote that (1) having properly reversed the district court’s dismissal of the indictment, which did not rest on an application of § 1326(d), there is no need for this court to instruct the district court to consider any particular issue as the case proceeds on remand; (2) the majority’s instructions 4 UNITED STATES V. BASTIDE-HERNANDEZ to reconsider the § 1326(d) issue violate the party presentation principle, under which courts normally decide only questions presented by the parties; and (3) the particular issues that the majority conjures up for remand are both irrelevant and meritless.
This opinion or order relates to an opinion or order originally issued on February 2, 2021.
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