United States v. Juan Bastide-HernandezUnited States v. Juan Bastide-Hernandez
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
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
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
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
The opinion and dissent filed on February 2, 2021, and published at 986 F.3d 1245 (9th Cir. 2021) are withdrawn. A new opinion and concurrence in the judgment are filed concurrently with this order. Accordingly, Defendant-Appellee‘s petition for rehearing en banc filed on March 2, 2021, is DENIED as moot. [Dkt No. 55]. Subsequent petitions for rehearing and petitions for rehearing en banc may be filed.
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
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 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
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.”
In Palomar-Santiago, the Supreme Court reversed precedent of this court that “‘excused [defendants] from proving the first two requirements’ of § 1326(d) if they were ‘not convicted of an offense that made [them] removable.‘” Id. at 1620 (quoting United States v Ochoa, 861 F.3d 1010, 1015 (9th Cir. 2017) (second alteration in original). In so doing, the Court explained that “[w]hen Congress uses ‘mandatory language’ in an administrative exhaustion provision, ‘a court may not excuse a failure to exhaust.‘” Id. at 1621 (quoting Ross v. Blake, 578 U.S. 632, 639 (2016)). Accordingly, “§ 1326(d)‘s first two procedural requirements are not satisfied just because a noncitizen was removed for an offense that did not in fact render him removable.” Id. This is because further administrative review, and judicial review, if necessary, could theoretically correct an immigration judge‘s (“IJ“) erroneous merits decision. See id.
Bastide-Hernandez first argued that the
This argument fails for two reasons. First, as we have discussed above, the IJ did not lack jurisdiction. Second, jurisdiction notwithstanding, Bastide-Hernandez would still need to satisfy each of the three
The government argues that Bastide-Hernandez failed to meet any of the requirements of
We note, however, that although exhaustion and deprivation of judicial review are two separate requirements, our case law previously recognized “three overlapping categories” that satisfied both requirements: 1) the failure of an IJ to inform a noncitizen of his right to appeal his removal order to the BIA; 2) the failure of an IJ 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. But, as we recently noted in Zamorano v. Garland, —F.4th —, 2021 WL 2621178 (9th Cir. June 25, 2021), Palomar-Santiago “casts doubt on the continued vitality of our exhaustion excusal rule under § 1326(d).” Id. at *8.3
IV
On remand, Bastide-Hernandez may be able to collaterally attack the underlying removal order, but only if he can meet the requirements of
Relevant statutory and regulatory provisions provide that notice to the noncitizen shall be “given in person” or by mail to either the noncitizen or his counsel of record. See
Also, we lack any record from the immigration-court proceeding, so we do not know if the IJ 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 IJ 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 knowing and intelligent, and Bastide-Hernandez does not address the issue in his brief.
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.
In light of United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021), I agree with my colleagues that Defendant Bastide-Hernandez must satisfy the requirements of
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 question in this case, which is whether jurisdiction vests even when the alien is never provided with the time, date, and place of his removal hearing. Id.
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
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
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 any document that purports to be a Notice to Appear with the Immigration Court is enough to vest jurisdiction with the IJ, even if that document does not comply with the regulatory requirements for an NTA, and those deficiencies are never cured. This interpretation ignores Karingithi‘s holding that the regulations—and specifically the regulatory requirements for an NTA—control when jurisdiction vests.
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.
CONCLUSION
Faithful application of Karingithi requires us to conclude that 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.