UNITED STATES OF AMERICA, Plaintiff-Appellant, v. JUAN CARLOS BASTIDE-HERNANDEZ, AKA Jesus Chavez-Gongoria, AKA Domingo Chavez-Lopez, AKA Francisco Soto Hernandez, Defendant-Appellee.
No. 19-30006
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed February 2, 2021
D.C. No. 1:18-cr-02050-SAB-1
Before: Danny J. Boggs, Milan D. Smith, Jr., and Mark J. Bennett, Circuit Judges. Opinion by Judge Boggs; Dissent by Judge Milan D. Smith, Jr.
FOR PUBLICATION
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
The Honorable Danny J.
SUMMARY**
Criminal Law
The panel reversed the district court‘s dismissal of an indictment charging illegal reentry after removal in violation of
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
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
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
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, Yakima, Washington, for Defendant-Appellee.
OPINION
BOGGS, Circuit Judge:
The United States challenges the district court‘s dismissal of an indictment charging Juan Carlos Bastide-Hernandez with illegal reentry after removal, in violation of
I
Bastide-Hernandez, a citizen and native of Mexico, first entered the United States without inspection in 1995 when he was 17 years old. Bastide-Hernandez, who is married to a United States citizen and has a United States citizen teenage son, has had extensive interaction with the immigration system. In April 2006, Bastide-Hernandez was placed in removal proceedings by U.S. Immigration and Customs Enforcement (“ICE“). On April 26, ICE served him two Notices to Appear (“NTA“), the first sent to his residence and the second to his updated address at the immigration detention facility in Tacoma, Washington. Neither NTA specified the date and time of the hearing, instead stating that the hearing would occur “on a date to be set [and] a time to be set.” On May 12, the immigration court sent Bastide-Hernandez a curative Notice of Hearing (“NOH“) by fax to an unidentified custodial officer at the detention center, which set the hearing date for June 14, 2006. Bastide-Hernandez denies ever receiving the NOH and there is no paperwork indicating when or if the unnamed custodial officer in fact served the NOH on Bastide-Hernandez.
The removal hearing was held on June 14. What actually occurred during the hearing is unknown, as the government failed to produce the requested hearing transcript, so we have no specific evidence that Bastide-Hernandez was in attendance. We do know that the immigration court entered an order of removal (with no indication that it was issued in absentia), which was the basis for Bastide-Hernandez‘s 2018
II
The district court‘s decision incorrectly relied on the reasoning of Pereira v. Sessions, 138 S. Ct. 2105 (2018), and was issued prior to this court‘s decisions in Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), and Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020). Under Karingithi and Aguilar Fermin, a defective NTA does not divest the immigration court of jurisdiction. Karingithi held that regulations promulgated by the Attorney General1 define when the jurisdiction of immigration courts vests, rather than the statute2 authorizing those regulations. Failure to include the date and time of a
Karingithi and Aguilar Fermin have created some confusion as to when jurisdiction actually vests, as neither squarely held that jurisdiction vests immediately upon the filing of an NTA, despite the language of the regulations. To clarify, we now hold 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. If this were not the case, upon the filing of an NTA jurisdiction would vest, but then would unvest if the NTA lacked required time, date, and location information, only to once again revest if a subsequent curative NOH provided that missing information. Jurisdiction is not so malleable. Jurisdiction, for all its subtle complexities, is not ephemeral. It either exists or it does not. Under Karingithi and Aguilar Fermin, we now hold that when an NTA is filed, jurisdiction exists and vests with the immigration court.
III
While a defective NTA does not affect jurisdiction, it can create due-process violations. A person is guilty of the offense of illegal reentry if he “has been denied admission, excluded, deported, or removed [from] the United States . . . and thereafter enters, attempts to enter, or is at any time found in, the United States.”
To mount a collateral attack on the validity of an underlying removal order, the defendant must demonstrate that “(1) the [noncitizen] exhausted any administrative remedies that may have been available to seek relief against the 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.”
Here, the government claims that Bastide-Hernandez failed to meet any of the requirements of
Although exhaustion and deprivation of judicial review are two separate requirements, this court has recognized “three overlapping categories” that satisfy both: 1) the failure of an immigration judge to inform a noncitizen of his right to appeal his deportation order to the Board of Immigration Appeals (“BIA“); 2) the failure of an immigration judge to inform a noncitizen that he is eligible for a particular kind of discretionary relief; and 3) where an alleged waiver of the right to appeal to the BIA was not “considered and intelligent” under the Due Process clause of the Fifth Amendment. Gonzales-Villalobos, 724 F.3d at 1130-31. The government bears the burden of proving the validity of a waiver. United States v. Ramos, 623 F.3d 672, 680 (9th Cir. 2010). This court “indulge[s] every reasonable presumption against waiver, and do[es] not presume acquiescence in the loss of fundamental rights.” Ibid. (quotation marks and citation omitted).
To prove the third requirement, prejudice and fundamental unfairness exist if a noncitizen‘s “due process rights were violated by defects in the underlying deportation proceeding, and if he suffered prejudice as a result of the defects.” Ramos, 623 F.3d at 680 (quotation marks and citation omitted). As clarified at oral argument, the existence of the three elements that are prerequisites to a
IV
On remand, Bastide-Hernandez may be able to collaterally attack the underlying removal order, if he can meet the requirements of
Also, we lack any record from the immigration-court proceeding, so we do not know if the immigration judge informed Bastide-Hernandez of his right to appeal to the BIA or if Bastide-Hernandez might have been eligible for discretionary relief and if he was, whether the immigration judge so informed him. Further, although Bastide-Hernandez appears to have signed the waiver-of-right-to-appeal box on the back of the NTA, the district court made no finding as to whether the waiver was
Additionally, questions may remain regarding actual receipt of the fax by the custodian or by Bastide-Hernandez, whether this is relevant under
The district court is REVERSED, and the case REMANDED.
UNITED STATES OF AMERICA, Plaintiff-Appellant, v. JUAN CARLOS BASTIDE-HERNANDEZ, Defendant-Appellee.
No. 19-30006
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed February 2, 2021
M. SMITH, Circuit Judge, dissenting:
In my view, Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), and Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020), compel the conclusion that dismissal of the indictment in this case was proper because the Immigration Court never cured the omission of the date and time of the hearing from Bastide-Hernandez‘s Notice to Appear (NTA), thereby depriving the Immigration Court of jurisdiction to issue a removal order. Without a valid removal order, the Government was unable to establish one of the elements of the charged offense of illegal reentry. Accordingly, I would affirm the district court.
ANALYSIS
A.
In Karingithi, we held that “the regulations define when jurisdiction vests” in the immigration court. 913 F.3d at 1160. The regulations state that jurisdiction vests upon the filing of an NTA, and they require that the NTA include “the time, place and date of the initial removal hearing, where practicable.”
The Karingithi court held that because the regulations require the inclusion of the date, time, and place of the hearing only where practicable, omission of that information in the NTA does not deprive the immigration court of jurisdiction to issue an order of removal. Importantly, Karingithi‘s holding was specifically conditioned on a critical fact in the case: that the alien later “received [notice of the time, date, and place of the hearing] in a timely fashion.” 913 F.3d at 1162. Karingithi therefore only decided the question of whether the immigration court had jurisdiction over an alien who received the required information later, separately from the initial NTA. It specifically reserved ruling on the
When applied to the separate question of the address where the NTA will be filed, Karingithi‘s analysis dictates that jurisdiction does not vest in the immigration court if the NTA excludes the address. If the regulations determine when jurisdiction vests, and the regulation‘s optional inclusion of the hearing information allows a later cure, then the regulation‘s mandatory information should be required for jurisdiction to vest.
Curiously, a Ninth Circuit case that addressed that issue came out the other way. In Aguilar Fermin v. Barr, we let stand the BIA‘s conclusion that omitting the address from the NTA did not deprive the immigration court of jurisdiction. We treated the address for NTA filing as synonymous with the place of the removal hearing. 958 F.3d at 895. Simultaneously, Aguilar Fermin relied on deference to the BIA‘s interpretation, deeming it not plainly erroneous. Id. Aguilar Fermin and Karingithi thus seem to be in tension, stemming from treating “place of the hearing” and “address of the immigration court where the NTA will be filed” as interchangeable terms despite their clearly different meanings and location in different subsections of the regulations. In my view, the relevant case is Karingithi, and it supports the district court‘s ruling.
B
Bastide-Hernandez‘s NTA did not include the date or time of the hearing. Moreover, he never received that information later. Under Karingithi, failure to cure the omission of the date and time of the hearing renders the NTA‘s sufficiency an open question but Karingithi provides the basis for addressing that issue.
Critically, Karingithi‘s holding was based on the fact that the alien in that case later received a notice listing the time, date, and place of the hearing, which essentially rendered harmless the NTA‘s omission of that information, and thus vested the immigration court with jurisdiction to issue a removal order. The court wrote, “[T]he hearing notices Karingithi received specified the time and date of her removal proceedings. Thus, we do not decide whether jurisdiction would have vested if she had not received this information in a timely fashion.” 913 F.3d at 1162.
Even Aguilar Fermin rests on the premise that the NTA‘s deficiency was later cured. In that case, the court wrote, “The question then, is what is the remedy when the address is omitted from the NTA?” and answered, “providing the alien and the government with the complete notice at a later time.” Aguilar Fermin, 958 F.3d at 895. Following the BIA‘s decision in Matter of Rosales Vargas, 27 I. & N. Dec. 745 (B.I.A. 2020), on the question of location, Aguilar Fermin stated, ”Rosales Vargas and Karingithi are consistent. Under both decisions, an omission of some of the information required by
C
In my view, the majority opinion represents a clear rejection of our binding precedent. Under the majority‘s view, filing
Moreover, the majority ignores that the relevant regulation prohibits the method of service used to serve the Notice of Hearing (NOH) in this case. The regulation permits service of an NOH only by personal delivery or certified mail.
D
I would further hold that the district court was correct in determining that Bastide-Hernandez did not need to satisfy the collateral attack requirements in
”
It is an open question in this circuit under recent case law whether a defendant must satisfy
District courts in this circuit have relied on Wilson to conclude that a defendant is not required to satisfy
First, upon a defendant‘s showing of a lack of jurisdiction in the immigration court, the government “cannot establish all of the requisite elements of illegal reentry under
Second, the reasoning in Wilson “comport[s] with general rules regarding challenges for jurisdiction[.]” Quijada-Gomez, 360 F. Supp. 3d at 1094-95. The requirements of
CONCLUSION
Faithful application of Karingithi requires us to affirm the district court‘s dismissal of the indictment. The government failed to comply with multiple regulatory requirements—both the information that must be provided to the alien and the manner of service of process. In the simplest terms, Karingithi requires regulatory compliance in order for the IJ to have jurisdiction to issue a removal order. By discarding Karingithi, the majority allows the government to bypass the plain language of the relevant regulations and the precedent upon which courts and parties have relied. I respectfully dissent.