986 F.3d 1245
9th Cir.2021Background:
- Juan Carlos Bastide-Hernandez, a Mexican national who first entered the U.S. in 1995, was placed in removal proceedings in April 2006.
- ICE served two Notices to Appear (NTAs) that did not specify hearing date/time; the immigration court later faxed a Notice of Hearing (NOH) setting a June 14, 2006 hearing to an unnamed custodial officer; there is no record that Bastide-Hernandez received it.
- The immigration court entered an order of removal at the June 14 proceeding; Bastide-Hernandez was indicted in 2018 for illegal reentry under 8 U.S.C. § 1326.
- The district court dismissed the indictment, holding the defective NTA (no date/time) deprived the immigration court of jurisdiction, relying on Pereira.
- The Ninth Circuit majority reversed: relying on Karingithi and Aguilar Fermin, it held jurisdiction vests when an NTA is filed (per governing regulations), and remanded for factual development on collateral-attack issues and service/receipt of the NOH.
- The panel dissented (Judge M. Smith): would have affirmed dismissal, finding no jurisdiction when the NTA omitted date/time and the NOH was not properly served; would also excuse §1326(d) exhaustion where the immigration court lacked jurisdiction.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does omission of time/date in an NTA deprive the Immigration Court of jurisdiction? | Filing an NTA (per 8 C.F.R. regs) vests jurisdiction even if hearing details are omitted; later NOH can cure defects. | Omission of required hearing date/time means no jurisdiction; removal order invalid. | Majority: Jurisdiction vests upon filing of an NTA; defective NTAs do not automatically divest jurisdiction. Case remanded. |
| Must a defendant satisfy 8 U.S.C. §1326(d) exhaustion and unfairness requirements to collaterally attack a removal order based on a defective NTA? | Govt: Bastide failed to meet §1326(d) (exhaustion, deprivation of judicial review, fundamental unfairness). | Bastide: If court lacked jurisdiction, §1326(d) is not required. | Majority: Bastide did not brief §1326(d) and must may try to meet its elements on remand; court did not resolve whether §1326(d) is excused where immigration court lacked jurisdiction. Dissent: §1326(d) unnecessary if no jurisdiction. |
| Was the NOH validly served by fax to a custodial officer? | Govt: NOH (fax) cured the NTA and gave proper notice. | Bastide: Fax to unnamed custodial officer does not prove actual receipt; EOIR manual prohibits fax service; service may be invalid. | Majority: Service and receipt are factual matters unresolved on record; remand required to determine validity and prejudice. Dissent: Fax service improper; no jurisdiction. |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (Supreme Court decision on Notice to Appear statutory requirements)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (regulations govern when immigration-court jurisdiction vests)
- Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020) (omission in NTA may be cured by later notice)
- United States v. Gonzales-Villalobos, 724 F.3d 1125 (9th Cir. 2013) (right to collateral attack on deportation order in §1326 prosecutions)
- United States v. Ramos, 623 F.3d 672 (9th Cir. 2010) (government bears burden to prove waiver of appellate rights)
- Wilson v. Carr, 41 F.2d 704 (9th Cir. 1930) (orders void for lack of jurisdiction must be disregarded)