United States v. Bastide-Hernandez

• Decision Date: 02 February 2021
• Docket Number: No. 19-30006,19-30006
• Citation: 986 F.3d 1245
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

986 F.3d 1245

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 February 2, 2021

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.

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).

Here, the government claims that Bastide-Hernandez failed to meet any of the requirements of § 1326(d), including because he failed to exhaust his administrative remedies during the 2006 immigration proceeding and during a later 2014 immigration proceeding, 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 claims on appeal that he did not need to satisfy any of the requirements of § 1326(d) because the immigration court lacked jurisdiction. He chose not to address any of the § 1326(d) requirements in his brief. Thus, he has failed to show that he can satisfy the § 1326(d) requirements based on the NTA's lack of date and time information. However, as discussed below in section IV, Bastide-Hernandez may be able to collaterally attack the underlying removal order on other grounds, if he can meet the requirements of § 1326(d).

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. Gonzalez-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 § 1326(d) challenge has not yet been put in issue, as the case was dismissed on jurisdictional grounds.

IV

On remand, Bastide-Hernandez may be able to collaterally attack the underlying removal order, if he can meet the requirements of 8 U.S.C. § 1326(d). 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 8 U.S.C. § 1229(a)(1) ; 8 C.F.R. § 1003.14(a) ; and 8 C.F.R. § 1003.32(a). The Executive Office of Immigration Review ("EOIR") operating manual promulgated by the Office of the Chief Immigration Judge directs "that a NOH must be served in person ‘when practicable’ and otherwise may be served by mail; service by fax is not permitted."³ Though neither the statute, regulations, nor manual are clear as to the effect of a custodial officer giving a fax in person to the detainee, we again note that to succeed under 8 U.S.C. § 1326(d), an alien must demonstrate, in addition to the other two statutory requirements, that "the entry of the order was fundamentally unfair."

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 knowing and...