United States v. Bastide-Hernandez

• Decision Date: 11 July 2022
• Docket Number: 19-30006
• Citation: 39 F.4th 1187
• 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

39 F.4th 1187

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 En Banc March 22, 2022 Pasadena, California

Filed July 11, 2022

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.

Opinion by Judge Owens ;

Concurrence by Judge Friedland ;

Partial Concurrence and Partial Dissent by Judge Collins

OWENS, Circuit Judge:

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.

I. BACKGROUND AND PROCEDURAL HISTORY

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.

II. DISCUSSION

A. Standard of Review

We review a district court's decision to dismiss a criminal indictment de novo, United States v. W.R. Grace , 504 F.3d 745, 751 (9th Cir. 2007), as we do its conclusion that a defect in removal proceedings precludes reliance upon the resulting order of removal in a subsequent prosecution under 8 U.S.C. § 1326, United States v. Reyes-Bonilla , 671 F.3d 1036, 1042 (9th Cir. 2012).

B. A Defective NTA Does Not Affect the Immigration Court's "Subject Matter Jurisdiction"

"Jurisdiction," the Supreme Court has cautioned, "is a word of many, too many, meanings." Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). It has been invoked, often imprecisely, in reference to forms of relief a court is empowered to grant, see id. , duties a judge is authorized to perform, see, e.g. , 8 C.F.R. § 1003.14(c), and even the territorial boundaries of a court's authority, see, e.g. , 8 C.F.R. § 1003.19(c)(1). But rules of subject matter jurisdiction are sui generis. They define the class of cases a court has the "statutory or constitutional power to adjudicate." Steel Co. , 523 U.S. at 89, 118 S.Ct. 1003 (emphasis in original). Such rules can never be waived or forfeited, courts are obligated to raise them sua sponte if the parties fail to do so, and if subject matter jurisdiction is found lacking at any stage of litigation, the suit must be dismissed (sometimes at considerable cost to the parties and the court).⁴ See Gonzalez v. Thaler , 565 U.S. 134, 141, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012). In short, the consequences of denominating any rule subject matter jurisdictional are "drastic." Id.

Thus, the Supreme Court has sought to impose "discipline" on the use of the term by distinguishing between rules properly implicating a court's adjudicatory authority and mere claim-processing rules.

Henderson ex rel. Henderson v. Shinseki , 562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011). Unlike rules of subject matter jurisdiction, claim-processing rules "seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times," id. , and "may be forfeited if the party asserting the rule waits too long to raise the point," Manrique v. United States , ––– U.S. ––––, 137 S. Ct. 1266, 1272, 197 L.Ed.2d 599 (2017) (internal quotation marks omitted). This is not to say the rules are optional. A timely objection to a claim-processing defect can in some cases warrant dismissal of the case. See, e.g., id. at 1274. But the Supreme Court "has long rejected the notion that all mandatory prescriptions, however emphatic, are properly typed jurisdictional." Gonzalez , 565 U.S. at 146, 132 S.Ct. 641 (internal quotation marks and ellipsis omitted).

As relevant here, the Attorney General has promulgated a regulation purporting to condition the "jurisdiction" of immigration courts upon the filing of a charging document, including NTAs. 8 C.F.R. §§ 1003.13, 1003.14(a).⁵ And the question is whether this regulation goes to the subject matter jurisdiction of immigration courts, with all the procedural consequences attending the use of that label. We join the emerging consensus of our sister circuits in holding that it does not.⁶ Section 1003.14(a) is a claim-processing rule not implicating the court's adjudicatory authority, and we read its reference to "jurisdiction" in a purely colloquial sense.

The Fourth Circuit's reasoning in United States v. Cortez is especially persuasive. 930 F.3d 350 (4th Cir. 2019). Like Bastide-Hernandez, the defendant in that case was deported following immigration proceedings commenced with an undated NTA. Id. at 353–54. He was orally notified of the date and time of his removal hearing and attended it via videoconference, but he never challenged the immigration court's jurisdiction or appealed the order of...