In United States v. Bastide-Hernandez, --- F.3d ---, No. 19-30006 (9th Cir. 2021), a divided 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 for further proceedings.
At issue in this case was whether a defective notice to appear (NTA) in immmigration court, lacking time and date information, was sufficient to provide the immigration court with jurisdiction to enter an order of removal.
The district court held it was not, and thus, because the removal order was invalid, there was no basis for the 1326 prosecution.
The panel majority disagreed. It concluded 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.
But, a defective NTA may violate due process, thereby allowing the defendant to collaterally attack the removal order under 8 U.S.C. sec. 1326(d).
The majority determined that, on remand, which was required because the basis for the district court’s dismissal was invalid, the defendant could try to make the requisite showing under sec. 1326(d).
Judge M. Smith dissented. He convincingly argued that, under binding precedent, "dismissal of the indictment in this case was proper because the Immigration Court never cured the omission of the date and time of the hearing from Bastide-Hernandez’s Notice to Appear (NTA), thereby depriving the Immigration Court of jurisdiction to issue a removal order. Without a valid removal order, the Government was unable to establish one of the elements of the charged offense of illegal reentry."
