United States v. Juan Bastide-Hernandez

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 OPINION
Francisco Soto Hernandez,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Washington
Stanley A. Bastian, Chief District Judge, Presiding

Argued and Submitted En Banc March 22, 2022
Pasadena, California

Filed July 11, 2022

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
2 UNITED STATES V. BASTIDE-HERNANDEZ

SUMMARY *

Criminal Law

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
*
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

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.

Concurring in the judgment, Judge Friedland wrote
separately to urge the Government to adhere to the statutory
requirements for the NTA. 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
4 UNITED STATES V. BASTIDE-HERNANDEZ

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.

COUNSEL

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.
 UNITED STATES V. BASTIDE-HERNANDEZ 5

OPINION

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
6 UNITED STATES V. BASTIDE-HERNANDEZ

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

1
Section 1326(a) requires the government to prove: (1) the
defendant was removed from the United States; (2) “thereafter the
defendant knowingly and voluntarily reentered the United States without
having obtained the consent of the Attorney General or the Secretary of
the Department of Homeland Security, to reapply for admission into the
United States”; and (3) “the defendant was [a noncitizen] at the time of
reentry.” Ninth Circuit Model Criminal Jury Instructions § 7.6 (2022).
 UNITED STATES V. BASTIDE-HERNANDEZ 7

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

2
Section 1326(d) provides:

In a criminal proceeding under this section, [a
noncitizen] may not challenge the validity of the
deportation order described in subsection (a)(1) or
subsection (b) unless the [noncitizen] demonstrates
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 [noncitizen]
of the opportunity for judicial review; and

(3) the entry of the order was fundamentally unfair.
3
In a footnote, the district court explained that if it “were to apply
the 8 U.S.C. § 1326(d) factors, it would likely find them met” in part
because the 2006 removal order was “fundamentally unfair.”
8 UNITED STATES V. BASTIDE-HERNANDEZ

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 (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
 UNITED STATES V. BASTIDE-HERNANDEZ 9

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 (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 (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 (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, 137 S. Ct. 1266, 1272 (2017)
(internal quotation marks omitted). This is not to say the
rules are optional. A timely objection to a claim-processing

4
Less clear, however, is whether subject matter jurisdiction can be
attacked collaterally. See Kontrick v. Ryan, 540 U.S. 443, 455 n.9 (2004)
(noting, as dictum, that subject matter jurisdiction “may not be attacked
collaterally”); United States v. Cortez, 930 F.3d 350, 357 (4th Cir. 2019)
(explaining that “the interest in the finality of judgments is sufficiently
strong” that a collateral attack on subject matter jurisdiction will be
permitted “only in exceptional circumstances”). For the purposes of this
opinion, we assume that it can, though we do not decide this issue.
10 UNITED STATES V. BASTIDE-HERNANDEZ

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 (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

5
8 C.F.R. § 1003.14(a) provides, in part, “Jurisdiction vests, and
proceedings before an Immigration Judge commence, when a charging
document is filed with the Immigration Court by the Service.”

6
See Lopez-Munoz v. Barr, 941 F.3d 1013, 1016 (10th Cir. 2019);
Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1150 (11th Cir. 2019);
Pierre-Paul v. Barr, 930 F.3d 684, 691–93 (5th Cir. 2019), abrogated in
part on other grounds by Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021);
United States v. Cortez, 930 F.3d 350, 358–62 (4th Cir. 2019); Ortiz-
Santiago v. Barr, 924 F.3d 956, 962–64 (7th Cir. 2019).
 UNITED STATES V. BASTIDE-HERNANDEZ 11

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 removal. Id. In
a subsequent prosecution for illegal reentry, he argued, for
the first time, that the NTA was insufficient to vest subject
matter jurisdiction in the immigration court under 8 C.F.R.
§ 1003.14(a) because it lacked date and time information,
and thus the resulting order of removal was void. Id. at 354–
55. After disputing (without conclusively overruling) the
parties’ assumption that subject matter jurisdiction can be
collaterally attacked in general or attacked without satisfying
the 8 U.S.C. § 1326(d) requirements, id. at 356–58, the
Fourth Circuit held that 8 C.F.R. § 1003.14(a) “is an internal
docketing rule, not a limit on an immigration court’s
‘jurisdiction’ or authority to act,” id. at 358.

As the Fourth Circuit explained, “the immigration
courts’ adjudicatory authority over removal proceedings
comes not from the agency regulation codified at 8 C.F.R.
§ 1003.14(a), but from Congress: It is the [Immigration and
Nationality Act (“INA”)] that explicitly and directly grants
that authority.” Id. at 360 (internal quotation marks
omitted); see also 8 U.S.C. § 1229a(a)(1) (“An immigration
judge shall conduct proceedings for deciding the
inadmissibility or deportability of [a noncitizen].”). Nothing
in the INA, the Fourth Circuit observed, conditions an
immigration court’s adjudicatory authority “on compliance
with rules governing notices to appear, whether statutory,
see 8 U.S.C. § 1229(a) (statutory definition of notice to
appear), or regulatory, see 8 C.F.R. § 1003.18(b).” Cortez,
930 F.3d at 360. Nor could that condition spring from
8 C.F.R. § 1003.14(a) because jurisdiction ordinarily
operates as an external constraint on a court’s authority to
act. “To deem such a regulation jurisdictional would be to
say that the Attorney General is in effect, . . . telling himself
12 UNITED STATES V. BASTIDE-HERNANDEZ

what he may or may not do.” Id. (internal quotation marks
omitted) (emphasis in original); see also Garcia v. Lynch,
786 F.3d 789, 797 n.2 (9th Cir. 2015) (Berzon, J.,
concurring); accord Perez-Sanchez v. U.S. Att’y Gen.,
935 F.3d 1148, 1155 (11th Cir. 2019); Ortiz-Santiago v.
Barr, 924 F.3d 956, 963 (7th Cir. 2019).

We agree. Although the statutory definition of an NTA
requires that it contain 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. See Pereira v. Sessions, 138 S. Ct. 2105, 2115
(2018). Nowhere does the statute imply, much less “clearly
state,” that its requirements are jurisdictional. See Sebelius
v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013) (“We
inquire whether Congress has clearly stated that the rule is
jurisdictional; absent such a clear statement, we have
cautioned, courts should treat the restriction as
nonjurisdictional in character.” (internal quotation marks
and alteration omitted)). And Department of Justice
(“DOJ”) regulations cannot define the subject matter
jurisdiction of immigration courts, because Congress gave
the Attorney General “no authority to adopt rules of
jurisdictional dimension.” Union Pac. R.R. Co. v. Bhd. of
Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment,
Cent. Region, 558 U.S. 67, 84 (2009). The only sensible way
to read 8 C.F.R. § 1003.14(a), then, is as a docketing rule
whose function extends no further than providing for “the
orderly administration of proceedings, including deportation
proceedings, before the immigration judges.” Cortez,
930 F.3d at 362.
 UNITED STATES V. BASTIDE-HERNANDEZ 13

This reading is consistent with the purpose and history
of § 1003.14. Cf. Gundy v. United States, 139 S. Ct. 2116,
2126 (2019) (plurality) (explaining “competing views” of
statutory interpretation). The 1985 Notice of Proposed
Rulemaking for § 1003.14’s predecessor regulation,
8 C.F.R. § 3.14, notes that then-existing DOJ regulations
permitted the Immigration and Naturalization Service (the
predecessor of the Department of Homeland Security) to
terminate removal proceedings at any time prior to the
commencement of the hearing. Aliens and Nationality;
Rules of Procedure for Proceedings Before Immigration
Judges, 50 Fed. Reg. 51,693, 51,693 (Dec. 19, 1985). Thus,
by fixing the point at which proceedings commence (and the
immigration court’s authority is invoked), the regulation
“limit[ed] the Service’s ability to cancel an Order to Show
Cause,” and provided the Executive Office for Immigration
Review “with the ability to utilize its resources efficiently by
ensuring optimal scheduling of matters on its hearing
calendars.” Id. Although the regulation and notice of
proposed rulemaking speak of “jurisdiction,” clearly their
focus was the internal, operational efficiency of the
immigration review process, see Cortez, 930 F.3d at 361–62,
a hallmark of a claim-processing rule unrelated to subject
matter jurisdiction.

This reading is also consistent with how we treat
charging documents in other contexts. Federal Rule of Civil
Procedure 3, for example, provides that “[a] civil action is
commenced by filing a complaint with the court.” But the
failure to comply with this rule is not a defect of
jurisdictional proportion. See Schlesinger v. Councilman,
420 U.S. 738, 742 n.5 (1975) (“[S]o long as the court’s
subject-matter jurisdiction actually existed and adequately
appeared to exist from the papers filed, . . . any defect in the
manner in which the action was instituted and processed is
14 UNITED STATES V. BASTIDE-HERNANDEZ

not itself jurisdictional and does not prevent entry of a valid
judgment.”). And although a criminal indictment must, as a
matter of constitutional law, charge any facts that enhance
the defendant’s sentence beyond the statutory maximum,
Apprendi v. New Jersey, 530 U.S. 466, 476 (2000), omission
of those facts (or any other defect in the indictment) will not
oust the court’s jurisdiction, United States v. Cotton,
535 U.S. 625, 630–31 (2002). If an indictment defect of
constitutional magnitude does not affect an Article III
court’s subject matter jurisdiction, defects in an NTA
likewise have no bearing on an immigration court’s
adjudicatory authority.

Our conclusion here is consistent with Karingithi,
913 F.3d 1158. At issue in Karingithi was whether the filing
of an undated NTA, subsequently supplemented with a
notice of hearing that specified the date and time of the
removal hearing, was sufficient to vest jurisdiction in the
immigration court. Id. at 1158. We answered in the
affirmative. Id. at 1159–60. We acknowledged the Supreme
Court’s decision in Pereira that an undated NTA does not
qualify as a notice to appear under 8 U.S.C. § 1229(a) for the
purposes of the stop-time rule. Id. at 1161; see also Pereira,
138 S. Ct. at 2110; 8 U.S.C. § 1229b(d)(1). But we held that
DOJ “regulations, not § 1229(a), define when [immigration
court] jurisdiction vests,” and “[a] notice to appear need not
include time and date information to satisfy this standard.”
Karingithi, 913 F.3d at 1160.

In so holding, we borrowed the “jurisdiction vests”
phraseology of 8 C.F.R. § 1003.14(a). But, like the
regulation itself, this reference to “jurisdiction” was
colloquial—that is to say, not denoting “subject matter
 UNITED STATES V. BASTIDE-HERNANDEZ 15

jurisdiction” or the court’s fundamental power to act. 7 Thus,
the import of our holding in this case, in concert with that in
Karingithi, is 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. 8 See id.
at 1162; Aguilar Fermin, 958 F.3d at 895 (extending
Karingithi to NTAs that fail to specify the location of the
removal hearing). 9

7
In the wake of Karingithi, some practitioners interpreted its
references to “jurisdiction” as applying to the immigration court’s
subject matter jurisdiction, and some case law can be read to suggest that
this is the correct reading. See, e.g., Cortes-Maldonado v. Barr, 978 F.3d
643, 646 n.2 (9th Cir. 2020); Aguilar Fermin v. Barr, 958 F.3d 887, 891–
95 (9th Cir. 2020); United States v. Gomez, 499 F. Supp. 3d 680, 685–
88 (N.D. Cal. 2020); United States v. Martinez-Gonzalez, 417 F. Supp.
3d 1349, 1351–53 (E.D. Wash. 2019), appeal voluntarily dismissed, No.
19-30252 (9th Cir. Feb. 10, 2020). To the extent that courts or
practitioners have read Karingithi as holding that the Attorney General’s
regulations govern the immigration court’s subject matter jurisdiction,
today we clarify that this is not the law in the Ninth Circuit.

8
To be clear, Karingithi did not address whether a timely notice of
hearing supplying time and date information missing from the NTA was
required to comply with § 1003.14(a) and neither do we. 913 F.3d
at 1162.
9
After Niz-Chavez, the information required in an NTA under
§ 1229(a) must appear in a single document to trigger the stop-time rule.
141 S. Ct. at 1480. But that decision did not concern the docketing
procedure set forth in 8 C.F.R. § 1003.14(a). Thus, while the supplement
of a notice of hearing would not cure any NTA deficiencies under
§ 1229(a), we continue to hold that it suffices for purposes of
§ 1003.14(a). See Karingithi, 913 F.3d at 1161 (noting that the definition
of “‘notice to appear under section 1229(a)’ does not govern the meaning
of ‘notice to appear’ under an unrelated regulatory provision”).
16 UNITED STATES V. BASTIDE-HERNANDEZ

Because the district court erroneously concluded that the
undated NTA precipitating Bastide-Hernandez’s removal in
2006 was insufficient to vest subject matter jurisdiction in
the immigration court and thus rendered its removal order
“void ab initio,” we reverse and remand for further
proceedings consistent with this opinion.10

REVERSED AND REMANDED.

10
The district court assumed that “a challenge to the immigration
court’s jurisdiction need not comply with § 1326(d)’s limitations on
collateral attacks.” But the court did not have the benefit of the Supreme
Court’s recent decision in United States v. Palomar-Santiago, 141 S. Ct.
1615 (2021). We remand for the district court to reconsider its § 1326(d)
analysis in light of that decision. And at that time, counsel for Bastide-
Hernandez can unequivocally state whether he believes § 1326(d) relief
is available. We do not interpret counsel’s statements at oral argument
as definitively as the partial dissent does. Compare Oral Argument at
56:47–56:52 (“If you say I do not win on the jurisdiction issue, remand
for 1326(d) is not necessary.”), with Oral Argument at 30:18–30:27
(“[A]t worst, this panel must remand to the district court because
Mr. Bastide-Hernandez was not given an opportunity to present evidence
regarding 1326(d) . . . .”).

We also leave it to the district court to determine on remand whether
Bastide-Hernandez forfeited his claim-processing rights by failing to
raise them during his 2006 immigration proceedings, and if forfeiture is
affected by whether he received a notice of hearing.
 UNITED STATES V. BASTIDE-HERNANDEZ 17

FRIEDLAND, Circuit Judge, concurring in the judgment:

I agree that we should reverse and remand for the district
court to decide whether Bastide-Hernandez has satisfied all
three requirements of 8 U.S.C. § 1326(d). See United States
v. Palomar-Santiago, 141 S. Ct. 1615, 1620–21 (2021). 1 I
write separately, however, to urge the Government to adhere
to the statutory requirements for the notice to appear
(“NTA”). See 8 U.S.C. § 1229(a)(1). Although our court
today holds that service of an NTA is not required to confer
jurisdiction on the immigration court, there are strong

1
I read § 1326(d) to apply to any collateral attack on an underlying
removal order that is raised during a prosecution for illegal reentry—
regardless of whether that collateral attack raises a jurisdictional flaw.
See Palomar-Santiago, 141 S. Ct. at 1620 (holding that the statute
“provides that defendants charged with unlawful reentry ‘may not’
challenge their underlying removal orders ‘unless’ they ‘demonstrat[e]’
that three conditions are met” (alteration in original) (quoting 8 U.S.C.
§ 1326(d))). Accordingly, I believe a remand for consideration of the
§ 1326(d) factors would be necessary even if the majority were holding
that defects in the notice to appear deprived the immigration court of
jurisdiction over Bastide-Hernandez’s original removal proceeding. An
absence of jurisdiction in the underlying removal proceeding would, at
most, satisfy the § 1326(d)(3) requirement of fundamental unfairness—
the requirements of § 1326(d)(1) (exhaustion of available administrative
remedies) and § 1326(d)(2) (lack of opportunity for judicial review)
would still need to be satisfied for a collateral attack to succeed. And
although the majority rejects Bastide-Hernandez’s theory that defects in
the notice to appear deprived the immigration court of jurisdiction,
Bastide-Hernandez is not precluded from prevailing on remand by
arguing that those defects are claim-processing violations (or, for that
matter, by raising other challenges to his original removal proceeding,
provided those challenges are not waived)—as long as he can meet the
requirements of § 1326(d). Because the district court made no factual
findings as to when Bastide-Hernandez learned of his hearing, whether
and how he participated in the hearing, what transpired during the
hearing, or whether he knowingly waived his right to appeal, we cannot
conduct the § 1326(d) analysis on the record before us.
18 UNITED STATES V. BASTIDE-HERNANDEZ

arguments for the contrary position. The Supreme Court
may therefore hold that jurisdiction vests over removal
proceedings only upon service of a single, statutorily
compliant NTA. To minimize disruption to immigration
proceedings if the Supreme Court so holds, and because
providing the required information at the outset is a better
practice in any event, I urge the Government not to interpret
the majority opinion as a license for complacency.

In 1996, Congress made sweeping changes to the
Immigration and Nationality Act (“INA”) in a law called the
Illegal Immigration Reform and Immigrant Responsibility
Act (“IIRIRA”). See Pub. L. 104-208, div. C, 110 Stat.
3009-546 (1996). Bastide-Hernandez makes a strong
argument that a transitional provision in IIRIRA shows that
Congress intended service of the NTA, as defined in IIRIRA,
to be a jurisdictional requirement.

Among IIRIRA’s many changes was a modification to
how notice of charges of removability must be given to
noncitizens. Prior to IIRIRA, the charging document used
to begin removal proceedings was called an “order to show
cause.” 8 U.S.C. § 1252b(a)(1) (1994); see Niz-Chavez v.
Garland, 141 S. Ct. 1474, 1484 (2021). IIRIRA dispensed
with the order to show cause and defined a new charging
document, called a “notice to appear,” in a newly enacted
section 239 of the INA entitled “Initiation of removal
proceedings.” IIRIRA sec. 304, § 239, 110 Stat. at 3009-587
to -589. As codified, that section provides in relevant part:

In removal proceedings under section 1229a
of this title, written notice (in this section
referred to as a “notice to appear”) shall be
given in person to the alien (or, if personal
service is not practicable, through service by
mail to the alien or to the alien’s counsel of
 UNITED STATES V. BASTIDE-HERNANDEZ 19

record, if any) specifying the following: . . .
The time and place at which the proceedings
will be held.

8 U.S.C. § 1229(a)(1), (a)(1)(G)(i). 2

To guide the transition to IIRIRA, Congress included a
provision explaining how the law would affect noncitizens
already in exclusion or deportation proceedings. See IIRIRA
sec. 309, 110 Stat. at 3009-625 to -627. In general, Congress
instructed that IIRIRA’s new provisions would not apply to
cases already in progress, either at the agency level or on
judicial review. Id. sec. 309(c)(1), 110 Stat. at 3009-625.
But for certain in-progress proceedings in which an
evidentiary hearing had not yet been held by the time IIRIRA
went into effect, Congress gave the Attorney General
discretion to proceed under the post-IIRIRA framework. Id.
sec. 309(c)(2), 110 Stat. at 3009-626. If the Attorney
General chose to invoke the new framework, Congress
specified that “the notice of hearing provided to the alien
under section 235 or 242(a) of [the INA] shall be valid as if
provided under section 239 of [the INA] (as amended by this
subtitle) to confer jurisdiction on the immigration judge.”
IIRIRA sec. 309(c)(2), 110 Stat. at 3009-626 (emphasis
added). As discussed, section 239 of the INA is the
provision that defines the NTA, codified at 8 U.S.C. § 1229.
Although § 1229 does not itself use the word “jurisdiction,”
the transition statute’s use of the word in reference to the
notice requirements of § 1229 suggests that Congress
understood the NTA to have jurisdictional significance.

2
Section 1229a provides that “[a]n immigration judge shall conduct
proceedings for deciding the inadmissibility or deportability of an alien.”
8 U.S.C. § 1229a(1).
20 UNITED STATES V. BASTIDE-HERNANDEZ

As Bastide-Hernandez also argues, Congress’s reference
to “jurisdiction” is consistent with the Executive Branch’s
apparent understanding, both before and after IIRIRA, that a
charging document is a prerequisite to the vesting of
jurisdiction in the immigration court. After IIRIRA, the
Attorney General announced plans to replace the “Order to
Show Cause, Form I-221” with the “Notice to Appear, Form
I-862” as the charging document used to initiate removal
proceedings. Inspection and Expedited Removal of Aliens;
Detention and Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 Fed. Reg. 444, 449
(proposed January 3, 1997). In the same proposed
rulemaking, the Attorney General reaffirmed a longstanding
rule that “[j]urisdiction vests, and proceedings before an
Immigration Judge commence, when a charging document
is filed with the Immigration Court by the Service.” 62 Fed.
Reg. at 456 (to be codified at 8 C.F.R. § 3.14). 3 That
language has since remained unchanged in a regulation
entitled “Jurisdiction and commencement of proceedings,”
now codified at 8 C.F.R. § 1003.14. The use of “and” in
both the text and title of the regulation suggests that the
Attorney General has understood the word “jurisdiction” to

3
The regulations first used a version of this language in 1985.
Aliens and Nationality; Rules of Procedure for Proceedings Before
Immigration Judges, 50 Fed. Reg. 51,693, 51,697 (Dec. 19, 1985)
(proposed rule) (“Jurisdiction vests and proceedings before an
Immigration Judge commence when a charging document is filed with
the Office of the Immigration Judge.”). In 1987, in response to criticism
that the wording was “not detailed enough to cover all situations,” the
Attorney General expressed that the rule was “a simple, direct statement
of jurisdiction” but added an exception to exclude bond proceedings.
Aliens and Nationality; Rules of Procedure for Proceedings Before
Immigration Judges, 52 Fed. Reg. 2931, 2932, 2937 (Jan. 29, 1987)
(final rule). In these regulations, “the Service” refers to the Immigration
and Naturalization Service, the predecessor of the Department of
Homeland Security.
 UNITED STATES V. BASTIDE-HERNANDEZ 21

do work beyond indicating when proceedings commence—
that is, beyond the work of a claim-processing rule that
“promote[s] the orderly progress of litigation by requiring
that the parties take certain procedural steps at certain
specified times,” Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428, 435 (2011). That understanding of the
regulation would be consistent with Congress’s suggestion
in IIRIRA that an NTA is what confers jurisdiction on the
immigration court. See IIRIRA sec. 309(c)(2), 110 Stat.
at 3009-626.

If service of an NTA under 8 U.S.C. § 1229 is a
jurisdictional requirement, then the Supreme Court’s
decisions in Pereira v. Sessions, 138 S. Ct. 2105 (2018), and
Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), would seem
to compel the conclusion that a notice lacking the time or
place of proceedings is inadequate to vest jurisdiction. The
Supreme Court held in Pereira that “[a] notice that does not
inform a noncitizen when and where to appear for removal
proceedings is not a ‘notice to appear under section
1229(a),’” 138 S. Ct. at 2110 (quoting 8 U.S.C.
§ 1229b(d)(1)), and clarified in Niz-Chavez that an NTA
must be a single document containing all statutorily required
information to trigger the stop-time rule for cancellation of
removal, 141 S. Ct. at 1486. Given that the Supreme Court
has on two occasions strictly enforced the statutory NTA
requirements, and given that there is evidence that Congress
intended an NTA to be necessary for jurisdiction over
removal proceedings, the Supreme Court may eventually
disagree with our court’s holding today. To minimize the
disruption that would follow from a holding that jurisdiction
is lacking in proceedings that did not begin with a statutorily
compliant NTA, I urge the Government to ensure that, going
forward, all NTAs contain the information required by
statute.
22 UNITED STATES V. BASTIDE-HERNANDEZ

Even aside from minimizing potential disruption, there
are good reasons for the Government to ensure that all
putative NTAs contain the time and place of removal
proceedings. The Supreme Court has observed that
“[c]onveying such time-and-place information to a
noncitizen is an essential function of a notice to appear, for
without it, the Government cannot reasonably expect the
noncitizen to appear for his removal proceedings.” Pereira,
138 S. Ct. at 2115. If the Government does not provide this
information at the outset, noncitizens may be deprived of a
meaningful opportunity to prepare for their hearings. For
instance, the Government “could serve a document labeled
‘notice to appear’ without listing the time and location of the
hearing and then, years down the line, provide that
information a day before the removal hearing.” Id.

An amicus brief filed by former immigration judges
elaborates on why it better serves clarity, efficiency, and due
process to include the time and location of the hearing in an
NTA in the first instance. As amici explain, incomplete
initial notice documents create uncertainty both for
noncitizens, who are left in the dark as to when and where a
potentially life-changing proceeding will be held, and for
immigration judges, who cannot be sure if a case can
proceed. Amici also note that the Government’s notice-by-
installment practice creates additional fact-finding
obligations for immigration judges, who may need to look to
multiple documents to determine whether informational
gaps in the initial notice have been filled. And amici caution
that, because immigration judges are already overburdened
and face pressure to complete cases, ambiguities about
notice may lead immigration judges to order noncitizens
removed when they fail to show up at their hearings, even if
the noncitizens never received notice of those hearings at all.
 UNITED STATES V. BASTIDE-HERNANDEZ 23

In recent years, the Government has failed to comply
with the time-and-place requirements of 8 U.S.C.
§ 1229(a)(1)(G)(i). See Pereira, 138 S. Ct. at 2111 (quoting
the Government’s statement during oral argument in 2018
that “almost 100 percent” of “notices to appear omit the time
and date of the proceeding over the last three years”). At
oral argument before our court, the Government admitted
that, despite progress in this area, some NTAs will continue
to have a placeholder reading “to be determined” or “to be
set” instead of the time and date of the hearing. This
admission shows that, more than a year after the Supreme
Court’s warning in Niz-Chavez, the Government still is not
“turn[ing] square corners” when it issues NTAs. 141 S. Ct.
at 1486. I urge the Government to redouble its efforts to
comply with the statute—and to take seriously the possibility
that statutory noncompliance might have jurisdictional
consequences.

COLLINS, Circuit Judge, concurring in part and dissenting
in part:

I concur 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). For three
reasons, I see no basis for us to order the district court to
undertake the further § 1326(d) analysis that is sketched in
that footnote.

First, 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 us to specify
what particular issues should or should not be considered as
the case proceeds on remand. With the indictment thus
24 UNITED STATES V. BASTIDE-HERNANDEZ

reinstated, the case will proceed in the ordinary course, and
the parties on remand may raise whatever issues they think
are appropriate. There simply is no need for us to instruct
the district court to consider any particular issue.

Second, in addition to being unnecessary, 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.” See United
States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020)
(simplified); see also id. (“[A]s a general rule, our system is
designed around the premise that parties represented by
competent counsel know what is best for them, and are
responsible for advancing the facts and argument entitling
them to relief.”) (simplified). The majority contravenes this
principle by instructing the district court on remand to
consider contentions that Bastide-Hernandez has never
made and, indeed, has explicitly disavowed.

As reflected in his answering brief, Bastide-Hernandez’s
position throughout this appeal has been that, if the
immigration court lacked subject matter jurisdiction when
his initial removal order was issued in 2006, then he “did not
need to satisfy § 1326(d)’s requirements because the
underlying removal order supporting the charge was issued
ultra vires” (emphasis added). Similarly, when asked to file
a supplemental brief in this court specifically addressing the
impact of Palomar-Santiago, Bastide-Hernandez reiterated
that the decision did not affect his jurisdictional objections,
“which can never be waived or forfeited,” and that the
decision therefore “has no bearing or impact on this appeal
whatsoever.” Notably, in that brief, Bastide-Hernandez
alluded to a different potential ground for challenging his
2006 removal order under § 1326(d)—viz., whether his
appeal waiver at his 2006 hearing was knowingly and
 UNITED STATES V. BASTIDE-HERNANDEZ 25

intelligently made—but he noted that the “question of the
validity of his appeal waiver was not raised in the district
court” and therefore was not at issue in this appeal.

In short, Bastide-Hernandez has never contended in this
court that, if the immigration court had subject matter
jurisdiction, he nonetheless could satisfy the requirements
for asserting a collateral challenge under § 1326(d) based on
non-jurisdictional defects in the underlying Notice to Appear
(“NTA”). Nonetheless, the majority inexplicably remands
with instructions to consider whether those non-
jurisdictional defects in the NTA could give rise to a
challenge under § 1326(d) or whether Bastide-Hernandez
“forfeited his claim-processing rights” concerning such
defects. See Opin. at 16 n.10.

The majority’s remand instructions are all the more
puzzling given the explicit position that Bastide-
Hernandez’s counsel took when asked about § 1326(d) at
oral argument. Counsel affirmatively stated that no
§ 1326(d) inquiry on remand was warranted if we were to
reject his argument that the NTA’s defects deprived the
immigration court of subject matter jurisdiction.
Specifically, when asked whether, if Bastide-Hernandez
were to lose on the jurisdictional issue, “there’s no remand
for § 1326(d),” counsel responded as follows:

Counsel: “That’s correct. That is my
position. If you say that I do not win on the
jurisdiction issue, remand for § 1326(d) is not
necessary. Again, because you have already
held that I lose on my substantive argument.”

Oral Argument at 56:39, United States v. Bastide-
Hernandez, available at . Instead, as counsel
26 UNITED STATES V. BASTIDE-HERNANDEZ

explained, a remand to consider the § 1326(d) factors was
necessary only if he prevailed on his jurisdictional argument:

Counsel: “[I]f we lose on the merits it
doesn’t matter whether we exhausted our
remedies.[ 1] It doesn’t matter if we satisfied
§ 1326(d) if we can’t satisfy the substance of
the argument.”

...

Counsel: “I think if you say I lose on [the]
substance, we go back to the district court. If
I win on [the] substance, but Palomar-
Santiago applies we still should go back to
the district court to address § 1326(d).”

Id. at 55:38, 57:42 (emphasis added).

In nonetheless claiming that Bastide-Hernandez’s
counsel was unclear on this score, the majority relies on a
quotation that it improperly takes out of context, thereby
distorting the meaning of what counsel said. See Opin. at 16
n.10. Counsel’s full statement was:

Counsel: “Palomar-Santiago and [§] 1326(d)
do not provide a barrier to relief when you’re
challenging subject matter jurisdiction and
authority of an immigration court, but at
worst, this panel must remand to the district
court because Mr. Bastide-Hernandez was

1
As the majority notes, see Opin. at 7 n.2, exhaustion of
administrative remedies is one of the three factors enumerated in
§ 1326(d).
 UNITED STATES V. BASTIDE-HERNANDEZ 27

not given an opportunity to present evidence
regarding [§] 1326(d) because that was not at
issue before the district court because the
district court excused him from proving that.”

Oral Argument at 30:07 (emphasis added). In context, it is
clear that counsel was addressing the impact of Palomar-
Santiago on the district court’s holding that a jurisdictional
challenge was excused from satisfying the requirements of
§ 1326(d). Counsel’s argument was that if we agree with his
contention that the defects in the NTA deprived the
immigration court of jurisdiction, then either (1) Palomar-
Santiago and § 1326(d) would “not provide a barrier to
relief” because the district court properly excused
compliance with § 1326(d); or (2) “at worst,” Palomar-
Santiago would require remand for application of § 1326(d).
Counsel’s point is exactly the same as what he later stated at
argument, as quoted above: “If I win on [the] substance, but
Palomar-Santiago applies we still should go back to the
district court to address § 1326(d).” Oral Argument at 57:42
(emphasis added). At no point did Bastide-Hernandez or his
counsel claim—either in his briefs or at oral argument—that
remand for application of § 1326(d) would be warranted if
he lost his jurisdictional argument.

Thus, Bastide-Hernandez himself has expressly
disclaimed the need for any further § 1326(d) analysis if we
rule against him on the jurisdictional issue. We have now
ruled against him on that jurisdictional issue—correctly, in
my view. Although Bastide-Hernandez has not asked us in
that circumstance to require a reconsideration of the
§ 1326(d) factors on remand, and has instead affirmatively
stated that such an analysis is unwarranted, the majority
nonetheless instructs the district court to go ahead and
reconsider the very issue that Bastide-Hernandez has
28 UNITED STATES V. BASTIDE-HERNANDEZ

consciously and affirmatively waived. That is improper.
See Sineneng-Smith, 140 S. Ct. at 1579. 2

Third, the particular issues that the majority conjures up
for remand are both irrelevant and meritless.

Having correctly recast the NTA’s defects as violations
of claim-processing rules, the majority sua sponte instructs
the district court to conduct a new § 1326(d) analysis that
addresses two specific issues: (1) whether Bastide-
Hernandez “forfeited his claim-processing rights”; and
(2) whether any such forfeiture “is affected by whether he
received a notice of hearing.” See Opin. at 16 n.10. But as
applied to this case, the majority’s two issues concerning
forfeiture of claims-processing objections are simply
irrelevant, because those non-jurisdictional objections (even
if preserved) could not possibly contribute to making the
three-prong showing that § 1326(d) requires, as construed in
Palomar-Santiago. Given that Bastide-Hernandez did
appear at his immigration court hearing (despite the NTA’s
failure to include date and time information), there is no
plausible sense in which those NTA’s date-and-time defects
could be said to have: (1) rendered an appeal to the BIA
unavailable, see 8 U.S.C. § 1326(d)(1) (requiring exhaustion
only of “available” administrative remedies); cf. Palomar-
Santiago, 141 S. Ct. at 1621; (2) “deprived” him “of the
opportunity of judicial review,” id. § 1326(d)(2); and
(3) prejudiced him, much less rendered his proceedings
“fundamentally unfair,” id. § 1326(d)(3); see also United
2
In defending its remand, the majority ignores every point made in
this dissent other than this review of counsel’s comments at oral
argument. See Opin. at 16 n.10. But even if the majority were correct
about counsel’s comments, it does not address the multiple other reasons
why we should not give specific instructions to reconsider the § 1326(d)
issue on remand.
 UNITED STATES V. BASTIDE-HERNANDEZ 29

States v. Barajas-Alvarado, 655 F.3d 1077, 1085 (9th Cir.
2011) (explaining that § 1326(d)(3) can be satisfied by
showing that “the deportation proceeding violated the alien’s
due process rights and the alien suffered prejudice as a
result”).

Moreover, the majority’s two forfeiture issues both lack
any plausible merit. Bastide-Hernandez plainly forfeited
any objection to the NTA’s non-jurisdictional defects by
failing to show that he raised any such objection either
during his 2006 immigration proceedings or in the multiple
subsequent removal proceedings that were based on the 2006
removal order (including at least one in which he was
represented by counsel). See, e.g., Manrique v. United
States, 137 S. Ct. 1266, 1272 (2017) (“Unlike jurisdictional
rules, mandatory claim-processing rules may be forfeited if
the party asserting the rule waits too long to raise the
point.”). And whether Bastide-Hernandez received a written
notice of hearing announcing the date and time of his 2006
removal hearing has no bearing on whether he did or did not
forfeit his non-jurisdictional objections to the NTA at that
hearing.

I am at a loss to understand why the majority, after
correctly resolving the main issue on appeal, sees fit to
remand with instructions to consider irrelevant and meritless
questions concerning an issue that Bastide-Hernandez not
only has declined to raise, but has affirmatively forsworn.
Accordingly, I respectively dissent from footnote 10, but I
otherwise concur in the majority opinion.