Thursday, February 18, 2021

US v. Gonzalez-Valencia, No. 19-30222 (2-12-21)(Bennett w/M. Smith & Boggs).  The recent decision, Bastide-Hernandez, holding that jurisdiction vests with the service of a defective immigration Notice to Appear (NTA), has exacted its toll. In Bastide-Hernandez, the majority held 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.” 2021 WL 345581, at *2. Here, the defendant received a NTA but without date and time. However, because of Bastide-Hernandez, the district court erred in dismissing the indictment. While lack of notice and time in a NTA can support a due process collateral attack, the defendant still must satisfy 1326(d) requirements. These include exhaustion of administrative remedies, lack of judicial review, and the fundamental unfairness of the proceedings based on lack of date and time.  Given that these issues were raised on appeal, the 9th finds the defendant cannot satisfy the 1326(d) requirements and is thus foreclosed from raising those issues in a collateral attack. The 9th does say he can attack on other grounds, but only if he can meet all the requirements of 1326(d). Note: This seems difficult if not impossible. The defendant had appeared at his hearing, where the immigration judge ordered him removed.

The decision is here:



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