FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30006
Plaintiff-Appellant,
D.C. No.
v. 1:18-cr-02050-
SAB-1
JUAN CARLOS BASTIDE-HERNANDEZ,
AKA Jesus Chavez-Gongoria, AKA
Domingo Chavez-Lopez, AKA ORDER AND
Francisco Soto Hernandez, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Stanley Allen Bastian, Chief District Judge, Presiding
Argued and Submitted December 7, 2020
San Francisco, California
Filed July 12, 2021
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.
*
The Honorable Danny J. Boggs, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 UNITED STATES V. BASTIDE-HERNANDEZ
SUMMARY **
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 8 U.S.C. § 1326, and
remanding.
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 8 C.F.R.
§ 1003.14(a) means what it says and controls: the
jurisdiction of the immigration court vests upon the filing of
a notice to appear, even one that does not at that time inform
the alien of the time, date, and location of the hearing.
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 8 U.S.C. § 1326(d), the
defendant must demonstrate that (1) he exhausted any
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. BASTIDE-HERNANDEZ 3
available administrative remedies; (2) the deportation
proceedings at which the order was issued improperly
deprived him of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair. Under
United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021),
each of these three statutory requirements is mandatory, and
the first two requirements are not excused for a noncitizen
who was removed for an offense that did not render him
removable. The panel left to the district court the question
whether the defendant may be able to collaterally attack the
underlying removal order on grounds other than the
immigration judge’s lack of jurisdiction, should he again
attack the removal order on remand.
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 8 US.C.
§ 1326(d) to obtain the relief he requests. His agreement,
however, ended there. Judge M. Smith wrote that, in his
view, Karingithi and Aguilar Fermin compelled 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
defendant’s notice to appear. Accordingly, he would reverse
the district court based only on the defendant’s failure to
satisfy the requirements of § 1326(d).
COUNSEL
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.
4 UNITED STATES V. BASTIDE-HERNANDEZ
Paul E. Shelton (argued), Federal Defenders of Eastern
Washington, Yakima, Washington, for Defendant-Appellee.
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.
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
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
UNITED STATES V. BASTIDE-HERNANDEZ 5
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, 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
6 UNITED STATES V. BASTIDE-HERNANDEZ
Karingithi and Aguilar Fermin, a defective NTA does not
divest the immigration court of jurisdiction. Karingithi held
that regulations promulgated by the Attorney General 1
define when the jurisdiction of immigration courts vests,
rather than the statute 2 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
1
8 C.F.R. § 1003.14(a), 8 C.F.R. § 1003.15(b), and 8 C.F.R.
§ 1003.18(b).
2
8 U.S.C. § 1229
UNITED STATES V. BASTIDE-HERNANDEZ 7
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. Gonzales-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.”
8 UNITED STATES V. BASTIDE-HERNANDEZ
United States v. Palomar-Santiago, 141 S. Ct. 1615, 1622
(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 (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
UNITED STATES V. BASTIDE-HERNANDEZ 9
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 three
separate requirements of § 1326(d). We leave this to the
district court, should Bastide-Hernandez again collaterally
attack the underlying removal order on remand.
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
10 UNITED STATES V. BASTIDE-HERNANDEZ
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 8 U.S.C. § 1326(d),
including exhaustion of “any administrative remedies that
may have been available to seek relief against the [removal]
order.” Id. § 1326(d)(1).
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.” 4 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 note that to succeed under 8 U.S.C. § 1326(d), an alien
must demonstrate, in addition to the other two statutory
Like the court in Zamorano, we leave for another day the effect of
3
Palomar-Santiago on the “three overlapping categories.”
4
Office of the Chief Immigration Judge, Executive Office for
Immigration Review, “Uniform Docketing System Manual,”
(Dec. 2013), available at: https://www.justice.gov/sites/default/files/eoir/
legacy/2014/04/07/DocketManual_12_2013.pdf.
UNITED STATES V. BASTIDE-HERNANDEZ 11
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 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 § 1326(d), and, if so, whether
Bastide-Hernandez was prejudiced by any service-of-
process deficiencies if he actually appeared by
videoconference. Because the district court’s basis for
dismissing the indictment was invalid, the case must be
remanded for further proceedings, in accordance with the
holdings in this opinion. All factual matters and any
additional legal challenges remain in the purview of the
district court.
The district court is REVERSED, and the case
REMANDED.
12 UNITED STATES V. BASTIDE-HERNANDEZ
M. SMITH, Circuit Judge, concurring in the judgment:
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
8 U.S.C. § 1326(d) to obtain the relief he requests. My
agreement, however, ends there. In my view, Karingithi v.
Whitaker, 913 F.3d 1158 (9th Cir. 2019), and Aguilar
Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020), 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 Bastide-
Hernandez’s Notice to Appear (NTA). Accordingly, I would
reverse the district court based only on Bastide-Hernandez’s
failure to satisfy the requirements of § 1326(d).
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.” 8 C.F.R. § 1003.18(b). When including the
information in the NTA is impracticable, “the Immigration
Court shall be responsible for scheduling the initial removal
hearing and providing notice to the government and the alien
of the time, place, and date of hearing.” 8 C.F.R.
§ 1003.18(b). There is no such exception for
impracticability with respect to the requirement that the
NTA include “[t]he address of the Immigration Court where
the Service will file the Order to Show Cause and Notice to
Appear.” 8 C.F.R. § 1003.15(b)(6). The address of the court
where the NTA will be filed may or may not be the same as
UNITED STATES V. BASTIDE-HERNANDEZ 13
the place where the hearing will be held; the two regulations
thus refer to different information. 1 In practical terms, the
address of the court where the NTA will be filed is important
because that is where the alien must file his own documents,
such as motions to the IJ and changes of address.
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
1
For clarity, I refer to the mandatory information (the address of the
immigration court where the Service will file the NTA) as “the address,”
or “the address for filing” and the permissive information (the place of
the hearing) as “the place” or “the place of hearing.”
14 UNITED STATES V. BASTIDE-HERNANDEZ
the regulation’s mandatory information should be required
for jurisdiction to vest.
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
UNITED STATES V. BASTIDE-HERNANDEZ 15
jurisdiction would have vested if she had not received this
information in a timely fashion.” 913 F.3d at 1162.
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 § 1003.14(a) and
§ 1003.15(b)(6) can be cured and is not fatal.” 958 F.3d
at 895 (emphasis added). Thus, Aguilar Fermin purported
to be consistent with Karingithi, and Karingithi treated the
regulatory requirements for an NTA as jurisdictional, though
able to be satisfied through a subsequent NOH. Where the
alien was never provided with information omitted from the
NTA, nothing in Aguilar Fermin suggests that the
immigration court obtains jurisdiction to issue a valid
removal order.
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.
16 UNITED STATES V. BASTIDE-HERNANDEZ
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. 8 C.F.R. § 1003.32. Here, the Immigration
Court faxed Bastide-Hernandez’s NOH to his unspecified
“Custodial Officer” at the detention facility where he was
housed. There is no evidence in the record demonstrating
that Bastide-Hernandez ever received the NOH. Our
precedent dictates that the IJ lacked jurisdiction to enter a
removal order under these circumstances.
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.