United States v. Bastide-Hernandez

3 F.4th 1193

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, Ninth Circuit.

Argued and Submitted December 7, 2020 San Francisco, California

Filed July 12, 2021

Richard C. Burson (argued), Assistant United States Attorney; Joseph H. Harrington, Acting 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.

Before: Danny J. Boggs,^* Milan D. Smith, Jr., and Mark J. Bennett, Circuit Judges.

Order;

Opinion by Judge Boggs;

Concurrence by Judge Milan D. Smith, Jr.

ORDER

The opinion and dissent filed on February 2, 2021, and published at 986 F.3d 1245 (9th Cir. 2021) are withdrawn.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.

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 8 U.S.C. § 1326. We reverse.

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 § 1326 indictment for illegal re-entry. The district court dismissed the indictment, holding that a defective NTA lacking time and date information did not provide the immigration court with jurisdiction to enter an order of removal. The district court also held that Bastide-Hernandez need not satisfy the § 1326(d) requirements because the immigration court lacked jurisdiction.

II

The district court's decision incorrectly relied on the reasoning of Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (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 removal hearing in an NTA does not deprive the immigration court of subject-matter jurisdiction so long as the information is provided in a subsequent NOH. Karingithi , 913 F.3d at 1161–62. Similarly, Aguilar Fermin held that failure to include the address of the immigration court in an NTA does not deprive the immigration court of jurisdiction, so long as a subsequent NOH provides that information. Aguilar Fermin , 958 F.3d at 893–95. The regulations provide that "[j]urisdiction vests ... when a charging document is filed with the Immigration Court," 8 C.F.R. § 1003.14(a), and requires the NTA include "the time, place and date of the initial removal hearing, where practicable." 8 C.F.R. § 1003.18(b).

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." 8 U.S.C. § 1326(a). Section 1326 specifically contemplates that defects in an original removal proceeding may vitiate a later criminal proceeding under § 1326(a). A defendant who is prosecuted for violating this criminal statute "has a due process right to collaterally attack the underlying deportation order, because it serves as a predicate element of the crime for which he is charged." United States v. Gonzalez-Villalobos , 724 F.3d 1125, 1129 (9th Cir. 2013).

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." 8 U.S.C. § 1326(d) ; see also United States v. Ochoa-Oregel , 904 F.3d 682, 684 (9th Cir. 2018). "[E]ach of the[se] statutory requirements ... is mandatory." United States v. Palomar-Santiago , ––– U.S. ––––, 141 S. Ct. 1615, 1622, ––– L.Ed.2d –––– (2021).

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, 136 S.Ct. 1850, 195 L.Ed.2d 117 (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 § 1326(d) factors were inapplicable because the IJ lacked jurisdiction. In his supplemental briefing, Bastide-Hernandez contends that Palomar-Santiago is irrelevant because it dealt only with a case in which the defendant was convicted of an offense that did not render him removable, not a case in which the IJ lacked jurisdiction.

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 § 1326(d) requirements in order to obtain relief. Bastide-Hernandez's arguments to the contrary are foreclosed by Palomar-Santiago. Claims based on arguments outside the statute cannot circumvent the mandatory nature of § 1326(d). Palomar-Santiago , 141 S. Ct. at 1621–22.

The government argues that Bastide-Hernandez failed to meet any of the requirements of § 1326(d). This included his failure to exhaust his administrative remedies during the 2006 immigration proceeding and during a later 2014 immigration proceeding by failing to appeal or waiving his right to appeal to the Board of Immigration Appeals ("BIA"), and because he failed to show that his immigration proceedings were fundamentally unfair based on the NTA's lack of date and time information. Bastide-Hernandez chose not to substantively address any of the § 1326(d) requirements in his brief, standing only on his jurisdiction argument that the district court had accepted. Because we have an underdeveloped record on appeal, we choose not to reach the question of whether Bastide-Hernandez may be able to collaterally attack the underlying removal order on other grounds by showing he can meet each of the...