United States v. Gonzalez-Valencia, No. 19-30222 (9th Cir. 2021)

Annotate this Case

The Ninth Circuit reversed the district court's dismissal of an indictment charging defendant of illegal reentry after removal in violation of 8 U.S.C. 1326. The panel applied the majority's holding in its recently published opinion in United States v. Bastide-Hernandez, —F.3d —, 2021 WL 345581 (9th Cir. 2021), which held that the jurisdiction of the immigration court vests upon the filing of the Notice to Appear (NTA), even one that does not at the time inform the alien of the time, date, and location of the hearing, and held that the district court erred in dismissing the indictment. The panel also held that defendant failed to show that he can satisfy the section 1326(d) requirements for collaterally attacking the underlying removal order based simply on the NTA's lack of date and time information, standing alone. Therefore, he is foreclosed from making that argument on remand. The panel explained that defendant may collaterally attack the underlying order on remand on other grounds, but only if he can meet all the requirements of section1326(d). Accordingly, the panel remanded for further proceedings.

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 for further proceedings, in a case in which the district court held that the immigration court lacked jurisdiction to enter the underlying removal order because the Notice to Appear (NTA) did not list the date and time of the removal hearing, and there was no evidence that the defendant later received the missing information. Applying United States v. Bastide-Hernandez, — F.3d —, 2021 WL 345581 (9th Cir. 2021)—which held that the jurisdiction of the immigration court vests upon the filing of the NTA, even one that does not at the time inform the alien of the time, date, and location of the hearing—the panel held: • the district court erred in dismissing the indictment. • the defendant failed to show that he can satisfy the 8 U.S.C. § 1326(d) requirements for collaterally attacking the underlying removal order based simply on the NTA’s lack of date and time information, standing alone; and he is thus foreclosed from making that argument on remand. UNITED STATES V. GONZALEZ-VALENCIA 3 • the defendant may collaterally attack the underlying order on remand on other grounds, but only if he can meet all the requirements of § 1326(d).

The court issued a subsequent related opinion or order on July 20, 2021.
The court issued a subsequent related opinion or order on February 28, 2023.

Download PDF

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant, v. JOSE ANTONIO GONZALEZVALENCIA, AKA Jose Antonio Valencia Gonzalez, Defendant-Appellee. No. 19-30222 D.C. No. 1:18-cr-02044SAB-1 OPINION Appeal from the United States District Court for the Eastern District of Washington Stanley Allen Bastian, Chief District Judge, Presiding Argued and Submitted December 7, 2020 San Francisco, California Filed February 12, 2021 Before: Danny J. Boggs, * Milan D. Smith, Jr., and Mark J. Bennett, Circuit Judges. Opinion by Judge Bennett * The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 2 UNITED STATES V. GONZALEZ-VALENCIA SUMMARY ** 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 for further proceedings, in a case in which the district court held that the immigration court lacked jurisdiction to enter the underlying removal order because the Notice to Appear (NTA) did not list the date and time of the removal hearing, and there was no evidence that the defendant later received the missing information. Applying United States v. Bastide-Hernandez, — F.3d —, 2021 WL 345581 (9th Cir. 2021)—which held that the jurisdiction of the immigration court vests upon the filing of the NTA, even one that does not at the time inform the alien of the time, date, and location of the hearing—the panel held: • the district court erred in dismissing the indictment. • the defendant failed to show that he can satisfy the 8 U.S.C. § 1326(d) requirements for collaterally attacking the underlying removal order based simply on the NTA’s lack of date and time information, standing alone; and he is thus foreclosed from making that argument on remand. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. GONZALEZ-VALENCIA • 3 the defendant may collaterally attack the underlying order on remand on other grounds, but only if he can meet all the requirements of § 1326(d). COUNSEL Richard C. Burson (argued), Assistant United States Attorney; William D. Hyslop, United States Attorney; United States Attorney’s Office, Yakima, Washington; for Plaintiff-Appellant. Paul E. Shelton (argued), Federal Defenders of Eastern Washington & Idaho, Yakima, Washington, for DefendantAppellee. OPINION BENNETT, Circuit Judge: The United States appeals from the district court’s dismissal of an indictment charging Jose Antonio GonzalezValencia with illegal reentry after removal, in violation of 8 U.S.C. § 1326. Applying the majority’s holding of our recently published opinion in United States v. BastideHernandez, —F.3d —, 2021 WL 345581 (9th Cir. 2021), we reverse and remand. I Gonzalez-Valencia, a citizen and native of Mexico, has been removed from the United States five times since 2000. His 2001 removal serves as the predicate removal supporting the § 1326 charge in this case. In late 2000, the Immigration 4 UNITED STATES V. GONZALEZ-VALENCIA and Naturalization Service (“INS”) learned that GonzalezValencia was in Washington state custody on charges of driving while his license was suspended and attempting to elude a pursuing police vehicle. Because Gonzalez-Valencia had been voluntarily removed from the United States just ten weeks prior, the INS denied his request for voluntary departure and initiated removal proceedings. The INS took Gonzalez-Valencia into immigration custody in December 2000. The INS served Gonzalez-Valencia with a Notice to Appear (“NTA”) on January 2, 2001. The NTA directed Gonzalez-Valencia to appear at a specified address, “Date and Time to be set.” On January 8, the immigration court sent Gonzalez-Valencia a Notice of Hearing (“NOH”) by fax to an unidentified custodial officer at the detention center, setting a hearing at 8:30 a.m. on January 9, 2001. The NOH specified a different hearing address than was listed in the NTA. Gonzalez-Valencia does not recall ever receiving the NOH and there is no paperwork showing when or if the unnamed custodial officer (or anyone else) served the NOH on Gonzalez-Valencia. It is undisputed, however, that Gonzalez-Valencia appeared at the removal hearing on January 9, which was held at the address listed in the NTA. The immigration judge ordered him removed to Mexico. Relying on Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), the district court dismissed the indictment, holding that the immigration court lacked jurisdiction to enter the 2001 removal order because the NTA did not list the date and time of the removal hearing, and there was no evidence that Gonzalez-Valencia later received the missing information. The court also held that the lack of jurisdiction UNITED STATES V. GONZALEZ-VALENCIA 5 excused Gonzalez-Valencia from having to satisfy the collateral attack requirements in 8 U.S.C. § 1326(d). 1 II We review de novo the district court’s dismissal of the indictment. See United States v. Reyes-Bonilla, 671 F.3d 1036, 1042 (9th Cir. 2012). We note that the district court did not have the benefit of our decision in Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020). In Bastide-Hernandez, the majority held that Karingithi and Aguilar Fermin compel the conclusion 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.” BastideHernandez, 2021 WL 345581, at *2. Thus, the district court erred in dismissing the indictment. As the majority explained in Bastide-Hernandez, defects in an NTA can serve as a basis to collaterally attack the validity of an underlying removal order, but only if the defendant can meet the requirements of § 1326(d). See id. at *2–3. The government argues that Gonzalez-Valencia met none of the requirements of § 1326(d), including because he failed to exhaust his administrative remedies during his 2001 removal proceedings and failed to show that his 2001 removal proceedings were fundamentally unfair based on the NTA’s lack of date and time information. Section 1326(d) requires an alien to prove that “(1) the alien exhausted any administrative remedies that may have been available to seek relief against the [challenged] order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d). 1 6 UNITED STATES V. GONZALEZ-VALENCIA Gonzalez-Valencia did not address any of the § 1326(d) requirements in his brief, claiming that he did not need to because the immigration judge lacked jurisdiction. Since the question of whether Gonzalez-Valencia met the § 1326(d) requirements because the NTA lacked date and time information was directly at issue in this appeal, we hold that Gonzalez-Valencia has failed to show that he can satisfy the § 1326(d) requirements based simply on the NTA’s lack of date and time information, standing alone. Gonzalez-Valencia is thus foreclosed from making that argument on remand. Though the government appears to argue that he should be foreclosed from making any § 1326(d) arguments on remand, given our holding in Bastide-Hernandez, and the way this case has proceeded, we allow Gonzalez-Valencia to collaterally attack the underlying removal order on remand on other grounds, but only if he can meet all the requirements of § 1326(d). See id. at *3–4. We reverse the district court’s dismissal of the indictment and remand for further proceedings consistent with this opinion. REVERSED and REMANDED.

Primary Holding

In light of United States v. Bastide-Hernandez, the Ninth Circuit reversed the district court's dismissal of an indictment charging defendant of illegal reentry after removal in violation of 8 U.S.C. 1326.

Disclaimer: Justia Annotations is a forum for attorneys to summarize, comment on, and analyze case law published on our site. Justia makes no guarantees or warranties that the annotations are accurate or reflect the current state of law, and no annotation is intended to be, nor should it be construed as, legal advice. Contacting Justia or any attorney through this site, via web form, email, or otherwise, does not create an attorney-client relationship.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.