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 Allen Bastian, Chief District Judge, Presiding Argued and Submitted December 7, 2020 San Francisco, California Filed February 2, 2021 Before: Danny J. Boggs, * Milan D. Smith, Jr., and Mark J. Bennett, Circuit Judges. Opinion by Judge Boggs; Dissent 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 reversed the district court’s dismissal of an indictment charging illegal reentry after removal in violation of 8 U.S.C. § 1326, and remanded, in a case in which the district court held that a defective notice to appear (NTA) lacking time and date information did not provide the immigration court with jurisdiction to enter an order of removal. 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 an NTA, 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 NTA does not affect jurisdiction, it can create due-process violations. The panel wrote that because the defendant chose not to address in his brief any of the requirements under 8 U.S.C. § 1326(d) for a collateral attack on the validity of the underlying removal, he failed to show that he can satisfy the § 1326(d) requirements based on the NTA’s lack of date and time information. The panel wrote that on remand, which is required because the basis for the district court’s dismissal was invalid, the defendant may be able to collaterally attack ** 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 underlying removal order on other grounds if he can meet the requirements of § 1326(d). Dissenting, Judge M. Smith wrote that Karingithi and Aguilar Fermin compel the conclusion that dismissal of the indictment was proper because the immigration court never cured the omission of the date and time of the hearing from the NTA, thereby depriving the immigration court of jurisdiction to issue a removal order. COUNSEL Richard C. Burson (argued), Assistant United States Attorney; William D. Hyslop, United States Attorney; United States Attorney’s Office, Yakima, Washington; for Plaintiff-Appellant. Paul E. Shelton (argued), Federal Defenders of Eastern Washington, Yakima, Washington, for Defendant-Appellee. 4 ...
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