United States v. Jose Gonzalez-Valencia ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30222
Plaintiff-Appellant,
D.C. No.
v. 1:18-cr-02044-
SAB-1
JOSE ANTONIO GONZALEZ-
VALENCIA, AKA Jose Antonio
Valencia Gonzalez, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Stanley Allen Bastian, Chief District Judge, Presiding
Argued and Submitted December 7, 2020
San Francisco, California
Filed February 12, 2021
Before: Danny J. Boggs, * Milan D. Smith, Jr., and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Bennett
*
The Honorable Danny J. Boggs, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 UNITED STATES V. GONZALEZ-VALENCIA
SUMMARY **
Criminal Law
The panel reversed the district court’s dismissal of an
indictment charging illegal reentry after removal in violation
of 8 U.S.C. § 1326, and remanded for further proceedings,
in a case in which the district court held that the immigration
court lacked jurisdiction to enter the underlying removal
order because the Notice to Appear (NTA) did not list the
date and time of the removal hearing, and there was no
evidence that the defendant later received the missing
information.
Applying United States v. Bastide-Hernandez, — F.3d
—, 2021 WL 345581 (9th Cir. 2021)—which held that the
jurisdiction of the immigration court vests upon the filing of
the NTA, even one that does not at the time inform the alien
of the time, date, and location of the hearing—the panel held:
• the district court erred in dismissing the indictment.
• the defendant failed to show that he can satisfy the
8 U.S.C. § 1326(d) requirements for collaterally
attacking the underlying removal order based simply
on the NTA’s lack of date and time information,
standing alone; and he is thus foreclosed from
making that argument on remand.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. GONZALEZ-VALENCIA 3
• the defendant may collaterally attack the underlying
order on remand on other grounds, but only if he can
meet all the requirements of § 1326(d).
COUNSEL
Richard C. Burson (argued), Assistant United States
Attorney; William D. Hyslop, United States Attorney;
United States Attorney’s Office, Yakima, Washington; for
Plaintiff-Appellant.
Paul E. Shelton (argued), Federal Defenders of Eastern
Washington & Idaho, Yakima, Washington, for Defendant-
Appellee.
OPINION
BENNETT, Circuit Judge:
The United States appeals from the district court’s
dismissal of an indictment charging Jose Antonio Gonzalez-
Valencia with illegal reentry after removal, in violation of
8 U.S.C. § 1326. Applying the majority’s holding of our
recently published opinion in United States v. Bastide-
Hernandez, —F.3d —, 2021 WL 345581 (9th Cir. 2021), we
reverse and remand.
I
Gonzalez-Valencia, a citizen and native of Mexico, has
been removed from the United States five times since 2000.
His 2001 removal serves as the predicate removal supporting
the § 1326 charge in this case. In late 2000, the Immigration
4 UNITED STATES V. GONZALEZ-VALENCIA
and Naturalization Service (“INS”) learned that Gonzalez-
Valencia was in Washington state custody on charges of
driving while his license was suspended and attempting to
elude a pursuing police vehicle. Because Gonzalez-Valencia
had been voluntarily removed from the United States just ten
weeks prior, the INS denied his request for voluntary
departure and initiated removal proceedings. The INS took
Gonzalez-Valencia into immigration custody in December
2000.
The INS served Gonzalez-Valencia with a Notice to
Appear (“NTA”) on January 2, 2001. The NTA directed
Gonzalez-Valencia to appear at a specified address, “Date
and Time to be set.” On January 8, the immigration court
sent Gonzalez-Valencia a Notice of Hearing (“NOH”) by fax
to an unidentified custodial officer at the detention center,
setting a hearing at 8:30 a.m. on January 9, 2001. The NOH
specified a different hearing address than was listed in the
NTA. Gonzalez-Valencia does not recall ever receiving the
NOH and there is no paperwork showing when or if the
unnamed custodial officer (or anyone else) served the NOH
on Gonzalez-Valencia. It is undisputed, however, that
Gonzalez-Valencia appeared at the removal hearing on
January 9, which was held at the address listed in the NTA.
The immigration judge ordered him removed to Mexico.
Relying on Karingithi v. Whitaker, 913 F.3d 1158 (9th
Cir. 2019), the district court dismissed the indictment,
holding that the immigration court lacked jurisdiction to
enter the 2001 removal order because the NTA did not list
the date and time of the removal hearing, and there was no
evidence that Gonzalez-Valencia later received the missing
information. The court also held that the lack of jurisdiction
UNITED STATES V. GONZALEZ-VALENCIA 5
excused Gonzalez-Valencia from having to satisfy the
collateral attack requirements in 8 U.S.C. § 1326(d). 1
II
We review de novo the district court’s dismissal of the
indictment. See United States v. Reyes-Bonilla, 671 F.3d
1036, 1042 (9th Cir. 2012). We note that the district court
did not have the benefit of our decision in Aguilar Fermin v.
Barr, 958 F.3d 887 (9th Cir. 2020).
In Bastide-Hernandez, the majority held that Karingithi
and Aguilar Fermin compel the conclusion 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.” Bastide-
Hernandez, 2021 WL 345581, at *2. Thus, the district court
erred in dismissing the indictment.
As the majority explained in Bastide-Hernandez, defects
in an NTA can serve as a basis to collaterally attack the
validity of an underlying removal order, but only if the
defendant can meet the requirements of § 1326(d). See id.
at *2–3. The government argues that Gonzalez-Valencia
met none of the requirements of § 1326(d), including
because he failed to exhaust his administrative remedies
during his 2001 removal proceedings and failed to show that
his 2001 removal proceedings were fundamentally unfair
based on the NTA’s lack of date and time information.
1
Section 1326(d) requires an alien to prove that “(1) the alien
exhausted any administrative remedies that may have been available to
seek relief against the [challenged] order; (2) the deportation proceedings
at which the order was issued improperly deprived the alien of the
opportunity for judicial review; and (3) the entry of the order was
fundamentally unfair.” 8 U.S.C. § 1326(d).
6 UNITED STATES V. GONZALEZ-VALENCIA
Gonzalez-Valencia did not address any of the § 1326(d)
requirements in his brief, claiming that he did not need to
because the immigration judge lacked jurisdiction.
Since the question of whether Gonzalez-Valencia met
the § 1326(d) requirements because the NTA lacked date
and time information was directly at issue in this appeal, we
hold that Gonzalez-Valencia has failed to show that he can
satisfy the § 1326(d) requirements based simply on the
NTA’s lack of date and time information, standing alone.
Gonzalez-Valencia is thus foreclosed from making that
argument on remand. Though the government appears to
argue that he should be foreclosed from making any
§ 1326(d) arguments on remand, given our holding in
Bastide-Hernandez, and the way this case has proceeded, we
allow Gonzalez-Valencia to collaterally attack the
underlying removal order on remand on other grounds, but
only if he can meet all the requirements of § 1326(d). See
id. at *3–4.
We reverse the district court’s dismissal of the
indictment and remand for further proceedings consistent
with this opinion.
REVERSED and REMANDED.