United States v. Bastide-Hernandez (9th Cir. July 2022), EN BANC

The Federal Docket

August 9, 2022

The en banc court considered whether a district court erred in dismissing an indictment charging the defendant with illegal reentry after removal under 8 U.S.C. 1326. The district court dismissed the indictment after fining that there had been defects in the “Notice to Appear” that instigated the initial immigration proceedings that led to the defendant’s removal. As such, the district court reasoned that the immigration court lacked subject matter jurisdiction over the defendant at the time it removed him, rendering the removal “void ab initio.”

Sitting en banc, the Ninth Circuit held that the failure of a Notice to Appear to specify the time and date for an immigrant’s proceedings does not deprive the immigration court of subject matter jurisdiction. As such, the immigration court had jurisdiction to remove the defendant. Regarding the language in 8 CFR 1003.14(a) regarding the jurisdiction of an immigration court, and how a notice to appear must be proper to invoke such jurisdiction, the Court explained that this reference to jurisdiction was “purely colloquial.” The Court also cited other circuits that have decided the issue on the same basis.

Judge Friedland concurred. While she agreed with majority’s opinion that failing to meet the requirements of a Notice to Appear does not deprive an immigration court of jurisdiction, she urged that the Government adhere to those requirements all the same.

Judge Collins concurred in the majority opinion except for the portion remanding to the district court.

Appeal from the Eastern District of Washington
En Banc Opinion by Owens
Concurrence by Friedland
Partial Concurrence and Partial Dissent by Collins

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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