United States v. Oswaldo Garcia-Lara ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30243
Plaintiff-Appellee, D.C. No.
2:18-cr-00138-RSM-1
v.
OSWALDO GARCIA-LARA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Submitted December 7, 2020**
San Francisco, California
Before: BOGGS,*** M. SMITH, and BENNETT, Circuit Judges.
Oswaldo Garcia-Lara appeals from the district court’s order denying his
motion to dismiss the indictment charging him with illegal reentry after
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.
§ 1291 and affirm.
Garcia-Lara collaterally attacks his removal order supporting the § 1326
charge. He contends that the immigration court lacked jurisdiction over his
removal proceedings because the notice to appear (“NTA”) failed to include the
date, time, and place of his removal hearing. Although the NTA failed to include
this information, Garcia-Lara was served with a notice before his hearing that
informed him of the date, time, and place of his hearing.
Garcia-Lara concedes that his jurisdictional argument is foreclosed by
binding precedent, and we agree. See Aguilar Fermin v. Barr, 958 F.3d 887, 889
(9th Cir. 2020) (holding “that an initial NTA need not contain time, date, and place
information to vest an immigration court with jurisdiction if such information is
provided before the hearing”), cert. denied, No. 20-53, 2020 WL 6385795 (Nov. 2,
2020).
He also appears to argue that, to the extent 8 U.S.C. § 1229 is ambiguous as
to what must be included in an NTA to confer jurisdiction, then we must apply the
rule of lenity and find that the statute requires that the time and place be included.
Even if the rule of lenity applied, Garcia-Lara’s argument is unavailing because it
depends on the incorrect assumption that § 1229 defines when jurisdiction vests in
the immigration court. In Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019),
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we rejected the argument that § 1229 defines when jurisdiction vests in the
immigration court. Id. at 1160 (“[T]he regulations, not § 1229(a), define when
jurisdiction vests.”).
Finally, because Garcia-Lara’s arguments challenging his removal order fail,
we need not decide whether he needed to exhaust them under § 1326(d)(1).
AFFIRMED.
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