United States v. Bastide-Hernandez
| Decision Date | 11 July 2022 |
| Docket Number | 19-30006 |
| 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 |
Argued and Submitted En Banc March 22, 2022 Pasadena, California
Appeal from the United States District Court for the Eastern District of Washington, D.C. No. 1:18-cr-02050- SAB-1; Stanley A. Bastian, Chief District Judge, Presiding
Scott A. C. Meisler (argued), Attorney; Lisa H. Miller, Deputy Assistant Attorney General; Kenneth A. Polite Jr., Assistant Attorney General; Patrick J. Glen, Senior Litigation Counsel John W. Blakeley, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; Vanessa R. Waldref, United States Attorney; Richard C. Burson, Assistant United States Attorney; United States Attorney's Office, Yakima Washington; for Plaintiff-Appellant.
Paul E. Shelton Jr. (argued), Federal Defenders of Eastern Washington, Yakima, Washington, for Defendant-Appellee.
Richard W. Mark, Amer S. Ahmed, Alexandra Perloff-Giles, and Cassarah M. Chu, Gibson Dunn & Crutcher LLP, New York New York, for Amici Curiae Former Immigration Judges and Members of the Board of Immigration Appeals.
Before: Mary H. Murguia, Chief Judge, and M. Margaret McKeown, Kim McLane Wardlaw, Consuelo M. Callahan, Morgan Christen, John B. Owens, Michelle T. Friedland, Ryan D. Nelson, Daniel P. Collins, Danielle J. Forrest and Patrick J. Bumatay, Circuit Judges.
SUMMARY[*]
The en banc court reversed the district court's dismissal of an indictment charging illegal reentry after removal in violation of 8 U.S.C. § 1326, and remanded for further proceedings, in a case in which the district court determined that defects in the notice to appear ("NTA")-which initiated the immigration proceedings against the defendant resulting in his eventual removal from the United States- deprived the immigration court of subject matter jurisdiction to effect the removal in the first place, thereby rendering the entire immigration proceeding "void ab initio."
Consistent with Ninth Circuit precedent and that of every other circuit to consider this issue, the en banc court held that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus the defendant's removal was not "void ab initio," as the district court determined.
The en banc court explained that 8 C.F.R. § 1003.14(a)-a regulation by which the Attorney General purported to condition the "jurisdiction" of immigration courts upon the filing of a charging document, including NTAs-is a claim-processing rule not implicating the court's adjudicatory authority. The en banc court read § 1003.14(a)'s reference to "jurisdiction" in a purely colloquial sense. The en banc court wrote that although the statutory definition of an NTA requires the date and time of the removal hearing, 8 U.S.C. § 1229(a)(1)(G)(i), this provision chiefly concerns the notice the government must provide noncitizens regarding their removal proceedings, not the authority of immigration courts to conduct those proceedings. The panel concluded that the import of the holding in this case, in concert with that in Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), is thus that § 1003.14(a) is a nonjurisdictional claim-processing rule, and the filing of an undated NTA that is subsequently supplemented with a notice of hearing fully complies with the requirements of that regulation.
She wrote that there is a strong argument that a transitional provision in the Illegal Immigration Reform and Immigrant Responsibility Act shows that Congress intended service of the NTA to be a jurisdictional requirement. She encouraged the Government to redouble its efforts to comply with the statute-both to minimize disruption to immigration proceedings in the event the Supreme Court disagrees with the court's holding today, and because providing the required information at the outset better serves clarity, efficiency, and due process in any event.
Judge Collins concurred in the majority opinion in all respects except for footnote 10, which remands "for the district court to reconsider its § 1326(d) analysis" in light of United States v. Palomar-Santiago, 141 S.Ct. 1615 (2021). He wrote that (1) having properly reversed the district court's dismissal of the indictment, which did not rest on an application of § 1326(d), there is no need for this court to instruct the district court to consider any particular issue as the case proceeds on remand; (2) the majority's instructions to reconsider the § 1326(d) issue violate the party presentation principle, under which courts normally decide only questions presented by the parties; and (3) the particular issues that the majority conjures up for remand are both irrelevant and meritless.
The United States appeals from 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. According to the district court, defects in the notice to appear ("NTA")-which initiated the immigration proceedings against Bastide-Hernandez resulting in his eventual removal from the United States- deprived the immigration court of subject matter jurisdiction to effect the removal in the first place, thereby rendering the entire immigration proceeding "void ab initio."
Consistent with our own precedent and that of every other circuit to consider this issue, we hold that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus Bastide-Hernandez's removal was not "void ab initio," as the district court determined. We reverse the district court's dismissal and remand for further proceedings.
Bastide-Hernandez, a citizen and native of Mexico, first entered the United States in 1996 without inspection. In the years that followed, he was convicted of narcotics and firearms offenses, as well as assault with a deadly weapon.
Bastide-Hernandez has also had extensive contact with the immigration system. In April 2006, he was placed in removal proceedings by U.S. Immigration and Customs Enforcement ("ICE"). ICE sent NTAs to his residence and his immigration detention facility, but neither specified the date or time of the hearing. While ICE later sent a curative notice of hearing for June 14, 2006, via fax to an unidentified custodial officer at the detention facility, Bastide-Hernandez denies receiving the notice of hearing, and the record remains unclear if he did. Though we lack a transcript or recording of the June 14, 2006, hearing, on appeal, Bastide-Hernandez concedes he attended the hearing via videoconference, and the immigration judge subsequently ordered his removal from the United States.
Despite his removal, Bastide-Hernandez returned to the United States. In 2018, a grand jury in the Eastern District of Washington returned an indictment for illegal re-entry after removal in violation of 8 U.S.C. § 1326(a).[1] Bastide-Hernandez moved to dismiss the indictment and argued that the NTA's omission of the date and time of his removal hearing meant that the immigration court lacked subject matter jurisdiction over his case. Because the immigration court lacked subject matter jurisdiction, the argument went, the removal order underlying the indictment was "void and without legal effect." And without the underlying removal, Bastide-Hernandez contended, the § 1326 indictment was necessarily defective.
The district court agreed with Bastide-Hernandez and dismissed the indictment. It treated the defective NTA as depriving the immigration court of subject matter jurisdiction and concluded that "[a]bsent jurisdiction, the removal order is void on its face and it is 'the duty of this and every other court to disregard it.'" The court explained that in addition to 8 U.S.C. § 1326(d), which is the statutory vehicle to collaterally attack the underlying deportation order,[2] "there remains a free-standing due process right to challenge a deportation order issued from a court that lacked subject-matter jurisdiction in a subsequent criminal case in which that order is used as an element, as the immigration court proceeding, its orders, and any protections it may have purported to offer were void ab initio."[3]
The United States appealed, and a three-judge panel held that the defective NTA did not deprive the immigration court of subject matter jurisdiction and remanded the case for further proceedings. United States v. Bastide-Hernandez, 3 F.4th 1193, 1196-98 (9th Cir.), vacated, 20 F.4th 1230 (9th Cir. 2021). Judge Milan Smith concurred in the judgment because Bastide-Hernandez failed to satisfy the § 1326(d) requirements, but read our decisions in Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), and Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020), to "compel the conclusion that the Immigration Court lacked jurisdiction to issue a removal order because the court never cured the omission of the date and time of the hearing" from the NTA. Bastide-Hernandez, 3 F.4th at 1198 (M. Smith, J., concurring).
Our court voted to take this case en banc to examine what effect, if any, a defective NTA has on an immigration court's subject matter jurisdiction.
We review a district court's...
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...not divest the immigration court of subject-matter jurisdiction when the notice was later supplemented with the missing information. Id. at 1188, 1193 &n.9. Here, supplemental notices were served, and Lopez attended the hearings. 2. Lopez Ceja waived her claim that an exception to the one-y......