Sunday, February 07, 2021

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


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






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