In United States v. Bastide-Hernandez, --- F.4th ---, No. 19-30006 (9th Cir. 2022), the en banc Court reversed the district court’s dismissal of an indictment charging illegal reentry after removal in violation of 8 U.S.C. § 1326.
The district court had dismissed the indictment based on defects in the notice to appear (“NTA”), which initiated the immigration proceedings against the defendant resulting in his eventual removal from the United States. The district court concluded that the defects deprived the immigration court of subject matter jurisdiction, thereby rendering the entire immigration proceeding void.
The Ninth Circuit disagreed:
"Consistent with our own precedent and that of every other circuit to consider this issue, we hold that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus Bastide-Hernandez’s removal was not 'void ab initio,' as the district court determined. We reverse the district court’s dismissal and remand for further proceedings."
"Although the statutory definition of an NTA requires that it contain the date and time of the removal hearing, 8 U.S.C. § 1229(a)(1)(G)(i), this provision chiefly concerns the notice the government must provide noncitizens regarding their removal proceedings, not the authority of immigration courts to conduct those proceedings. Nowhere does the statute imply, much less 'clearly state,' that its requirements are jurisdictional."
