FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

U

NITED S TATES OF A MERICA , Plaintiff

- Appellant

,

v.

J UAN C ARLOS B ASTIDE

- H ERNANDEZ , 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 U NITED S TATES V

. B ASTIDE

- H ERNANDEZ

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 ord er.

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.U NITED S TATES V

. B ASTIDE

- H ERNANDEZ 3

available administrat ive 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.

C oncurring in the judgment, Judge M. Smith wrote that in lig ht 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 Agui lar 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).

C OUNSEL

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 U NITED S TATES V

. B ASTIDE

- H ERNANDEZ

Paul E. Shelton (argued), Federal Defenders of Eastern Washington, Yakima, Washington, for Defendant

- Appelle e

.

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 rehearin g 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 indict ment 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 yea rs 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. Immigr ation and Customs Enforcement (“ICE”). On April 26, ICE servedU NITED S TATES V

. B ASTIDE

- H ERNANDEZ 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 offi cer 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 remov al 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 immi gration 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 N TA 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). Under6 U NITED S TATES V

. B ASTIDE

- H ERNANDEZ

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 immi gration 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 an d Aguilar Fermin have created some confusion as to when jurisdiction actually vests, as n either 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 regulati on 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 ti me, 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. § 1229U NITED S TATES V

. B ASTIDE

- H ERNANDEZ 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, juris diction 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, o r 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 lat er 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

rem edies 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 U NITED S TATES V

. B ASTIDE

- H ERNANDEZ

United States v. Palomar

- Santiago , 141 S. Ct. 1615, 1622 (2021).

In Palomar

- Santiago , the Su preme 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 101 0, 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 administ rative 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 jurisdic tion.

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 obt ain relief. Bastide

- Hernandez’s arguments to the contrary are foreclosed by Palomar

- Santiago. Claims based on arguments outside the statute cannot circumvent theU NITED S TATES V

. B ASTIDE

- H ERNANDEZ 9

mandatory nature of § 1326(d). Palomar

- Santiago , 141 S. Ct. at 1621

– 22.

The government ar gues 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 substan tively 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

- Hern andez 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 fai lure 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 appea l 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 (9th10 U NITED S TATES V

. B ASTIDE

- H ERNANDEZ

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 serve d 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 de monstrate, 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/ le gacy/ 2014/04/07/DocketManual_12_2013.pdf.U NITED S TATES V

. B ASTIDE

- H ERNANDEZ 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 a ppeal 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

- He rnandez, 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 U NITED S TATES V

. B ASTIDE

- H ERNANDEZ

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, Karingith i 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 regulati ons 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, pla ce, 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 t o 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 asU NITED S TATES V

. B ASTIDE

- H ERNANDEZ 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, t ime, 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 rem oval 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 pla ce of hearing.”14 U NITED S TATES V

. B ASTIDE

- H ERNANDEZ

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 pro vides 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 o f 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 whetherU NITED S TATES V

. B ASTIDE

- H ERNANDEZ 15

juris diction 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 t he 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. De c. 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 fata l .” 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 pre cedent. 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 tho se 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 U NITED S TATES V

. B ASTIDE

- H ERNANDEZ

Moreover, the majority ignores that the relevant regulation pro hibits 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 h is 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 ord er under these circumstances.

CONCLUSION

Faithful application of Karingithi requires us to conclude that t he 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 reg ulations and the precedent upon which courts and parties have relied.