Case o' The Week: No Date, No Time, No Place, No Problem - Bastide-Hernandez and Notices to Appear after Karingithi and Fermin

 “In my view, the majority opinion represents a clear rejection of our binding precedent.” 

The Hon. Judge Milan Smith

United States v. Bastide-Hernandez, 2021 WL 345581 (9th Cir. Feb. 2, 2021) (Smith, Milan, J., dissenting), decision available here.

 Players: Decision by visiting Sixth Circuit Judge Boggs, joined by Judge Bennett. 

Compelling dissent by Judge Milan Smith. 

Hard-fought appeal by AFPD Paul Shelton, Federal Defenders of Eastern Washington.  

 Facts: Bastide-Hernandez, a Mexican national, had “numerous” interactions with immigration. Id. at *1. ICE sent him notices to appear (NTA), but they did not include the date or time of the removal hearing. Id. at *1.

The immigration court then faxed a curative Notice of Hearing, but Bastide-Hernandez denied receiving it -- and the government failed to produce evidence that a custodial officer had transmitted it. Id.

There was a removal hearing – but the government failed to introduce a transcript. Id.

Bastide-Hernandez was later prosecuted for illegal re-entry, in violation of 8 USC § 1326, based on this removal. Id. The district court dismissed, holding that the defective notices deprived the immigration court of jurisdiction. Id. 

The government appealed.

 Issue(s): “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.” Id. at *1.

 Held: “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 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.” Id.

Of Note: In a thoughtful dissent, Judge Milan Smith explains why the panel got it wrong. See id. at *4 (Smith, J. dissenting). 

Judge Smith (correctly) views Karingithi as controlling, and points out that in that case, the alien actually did later receive notice of the time, date and place of the hearing. Id. at *5. That is a big distinction from Bastide-Hernandez, where the Ninth somehow divines immigration court jurisdiction when deficient notices are all that are in the record. Id. at *2. 

Judge Smith’s dissent is spot on: this decision should go en banc.

 How to Use: Immigration gurus urge us to still bring Pereira challenges. As Judge Smith reports, there is now tension within the Ninth’s own Pereira authority, and e.b. or cert. action may be on the horizon. 

Also, it bears noting that Bastide-Hernandez’s own case was remanded by the panel to evaluate potential due process violations (although without a jurisdictional challenge to NTAs, § 1326(d) can be a bit of a sticky wicket.)  

For Further Reading: A central plank in President Biden’s campaign was criminal justice reform. See generally Biden web page here. 

An interesting new op-ed argues that this promised reform will be impossible until Judge Garland gets a hearing and is confirmed as A.G., and new U.S. Attorneys take over the local reins. See “Delays in Garland hearing, and in replacing U.S. attorneys, put justice reform in jeopardy,” available here. 

Here in NorCal, five contenders are running for the U.S. Attorney spot – presenting a real opportunity for the first Black U.S. Attorney in the district in roughly forty years. See “Who is in the Running for the San Francisco U.S. Attorney Spot, available here.  

 

 

Image of the Honorable Judge Milan Smith from https://www.latimes.com/california/story/2020-02-22/trump-conservative-judges-9th-circuit

 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

 

.

 

 

 

Case o' The Week: "Start Making Sense" - Guerrero-Jasso and Apprendi harmless error review

  “How did we get here?” yell the Talking Heads.

   Judge Berzon wants to know, too.

United States v. Guerrero-Jasso, 2014 WL 2180101 (9th Cir. May 27, 2014), decision available here.

Players: Decision by Judge Berzon, joined by Judge Paez and concurring Judge Fernandez. Concurrence by Judge Berzon (on Apprendi harmless error). Great win by ND Cal AFPD Cynthia Lie and R&W Attorney Mara Goldman.

Facts: Guerrero-Jasso, an alien, was removed three times. Id. at *1. Before one of those removals, he was convicted of an aggravated felony. Id. at *1. He returned and was charged with illegal reentry, in violation of 8 U.S.C. § 1326(b). Id. Guerrero-Jasso pleaded guilty to an information alleging all three removals, but didn't admit any particular one of them (only one of the three removal dates followed the agg felony, and would trigger the twenty-year stat max, instead of the two-year stat max exposure). Id. at *1-*2. 

  At sentencing, he contested the 42-month term by arguing he only faced two years – he hadn’t admitted the date of removal necessary to trigger twenty. Id. at *2. The government, faced with this objection, introduced new evidence of removals (over defense objections). Id. 

  The district court found the defendant had sufficiently admitted the key removal date in the Information, and Guerrero-Jasso was sentenced to 42 months. Id.

Issue(s): “Guerrero-Jasso’s sole contention on appeal is that under Apprendi, it was error to apply 8 U.S.C. § 1326(b)'s increased statutory maximum, because his guilty plea to the essential elements of 8 U.S.C § 1326(a) did not establish that he had been removed after an aggravated felony conviction.” Id. at *2.

Held: “We hold that, in applying the twenty-year statutory maximum penalty instead of the two-year statutory maximum penalty, the district court impermissibly relied on facts that were neither admitted by the Defendant nor found by a jury beyond a reasonable doubt . . . See Apprendi . . . . Accordingly, we vacate the sentence, and remand for further proceedings consistent with this opinion.” Id. at *1.

Of Note: This is a remarkable opinion. The Ninth rejects the government’s attempt to circumvent Apprendi by introducing evidence of the removals at sentencing, and also rejected a gambit to salvage all through harmless error in a thoughtful analysis. Id. at *5-*7. It is an extraordinarily refreshing read, that goes back to the heart of the Apprendi right and makes it very clear that the government bears the burden to prove these facts. Id. at *3. A seminal Ninth Circuit Apprendi case.

How to Use: Judge Berzon is concerned. Id. at *8 (Berzon, J., concurring). She wonders, “how did we get here,” to a state of the law where “harmless error” review (NOT plain error) can routinely cure all and eviscerate the important Apprendi constitutional right? Id. at *10. Her scholarly concurrence traces the devolution of appellate review of Apprendi error, and correctly opines: “To sanction such a procedure is to allow the protections accorded by Apprendi entirely to atrophy.” Id. at *15. Flag this concurrence for a future en banc pitch on Apprendi harmless error review: Judge Berzon is ready to get the Ninth’s Apprendi law back on track.

                                               

For Further Reading: The AUSA here invited the district court to err, assuring the judge that the sentencing decision would be reviewed under the deferential harmless error standard. Id. at *9. Is it ethical for a prosecutor to invite error, with the assurance that gov’t-friendly standards of review will mean no reversal? For an intriguing argument that deliberate violations by the government should trigger automatic reversal instead of harmless error review, see Vilija Bilasis, Harmless Error: Abettor of Courtroom Misconduct, Journal of Criminal Law and Criminology, Vol. 74 Issue 2, available here.  

Image of David Byrne from https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjzcUQ2rlziphKXxgSxRtSxLZxi1kqrXjMyRurBIQ2TgGF6mMGRsREbxFfNCmoEfgDjmPnhlmKJOM_MpNjA47ajK9AiNsoMdclH7W7oWU9EAf0KNg9EVRnT57FaoE6OpATaWEK_UQ/s320/StopMakingSense.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org