FILED NOT FOR PUBLICATION FEB 18 2021 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-30153 Plaintiff-Appellant, D.C. No. 4:19-cr—06005-SAB-1 v. MEMORANDUM* RUBISEL DELCARMEN-ABARCA, Defendant-Appellee. Appeal from the United States District Court for the Eastern District of Washington Stanley Bastian, District Judge, Presiding Argued and Submitted December 7, 2020 San Francisco, California Before: BOGGS,** M. SMITH, and BENNETT, Circuit Judges * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. The United States challenges the district court’s dismissal of an indictment charging Rubisel Delcarmen-Abarca with illegal reentry after removal, in violation of 8 U.S.C. § 1326. Applying the holding of our recently published opinion in United States v. Bastide-Hernandez, No. 19-30006 (9th Cir. Feb. 2, 2021), https://cdn.ca9.uscourts.gov/datastore/opinions/ 2021/02/02/19-30006.pdf, we reverse and remand. I Delcarmen-Abarca, a native and citizen of Mexico, entered the United States without inspection in 1986, at age 23. He is married and has a United States citizen daughter. He cannot read or write in Spanish or English. On September 17, 2003, the Bureau of Immigration and Customs Enforcement (“ICE”) placed him in removal proceedings for entering without inspection, took him into custody, and personally served Delcarmen-Abarca with a notice to appear (“NTA”), which ordered him to appear at a “date, time, and place to be set” for his removal hearing. On September 26, 2003, the Executive Office of Immigration Review (“EOIR”) personally served Delcarmen-Abarca a notice of hearing of removal (“NOH”) providing the time, date, and location of his hearing: 8:30 am, October 1, 2003, at the immigration court in Lancaster, California. Delcarmen-Abarca appeared in person at his removal hearing, was found removable by the immigration judge (“IJ”), and was removed to Mexico on October 2, 2003. 2 In December 2018, Delcarmen-Abarca reentered the United States, was again taken into ICE custody, and in January 2019, was indicted for illegally reentering the United States after removal, in violation of 8 U.S.C. § 1326. Delcarmen-Abarca filed a motion to dismiss, arguing that the immigration court lacked subject-matter jurisdiction and, in the alternative, that the IJ violated his due-process rights by finding him ineligible for voluntary departure. The district court held that the immigration court lacked jurisdiction to issue the underlying removal order because the NTA lacked necessary time, date, and location information, the lack of location information was not cured by a subsequent NOH, and the NOH, even if otherwise curative, did not give the defendant 10 days of notice after the NTA and prior to the removal hearing, as specified by 8 U.S.C. § 1229(b)(1).1 II The district court opinion relied on, Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), and was issued before Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020). In Bastide-Hernandez, we recently clarified ...
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