FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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

D.C. No.

1:18-cr-02050-

SAB-1

ORDER AND 

OPINION

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, DefendantAppellee’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 BastideHernandez 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 BastideHernandez.

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 General1

define when the jurisdiction of immigration courts vests, 

rather than the statute2 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 (9thCir. 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. GonzalesVillalobos, 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 

3 Like the court in Zamorano, we leave for another day the effect of 

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 BastideHernandez of his right to appeal to the BIA or if BastideHernandez 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-ofprocess 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 BastideHernandez’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.