United States of America v. JOSE ANTONIO GONZALEZ- VALENCIA, AKA Jose Antonio Valencia Gonzalez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED S TATES OF A MERICA,
Plaintiff-Appellant,
v.
J OSE ANTONIO GONZALEZ-
VALENCIA, AKA Jose Antonio
Valencia Gonzalez,
Defendant-Appellee.
No. 19-30222
D.C. No.
1:18-cr-02044-
SAB-1
ORDER AND
OPINION
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 July 20, 2021
Before: Danny J. Boggs,* Milan D. Smith, Jr., and
Mark J. Bennett, Circuit Judges.
Order;
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.

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2 UNITED S TATES V. G ONZALEZ -VALENCIA
SUMMARY**
Criminal Law
The panel filed (1) an order withdrawing its opinion filed
on February 12, 2021, and denying a petition for rehearing
en banc as moot; and (2) a new opinion reversing the district
court’s dismissal of an indictment charging illegal reentry
after removal in violation of 18 U.S.C. § 1326, and
remanding for further proceedings.
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. The
district court held that the lack of jurisdiction excused the
defendant from having to satisfy the collateral attack
requirements in 8 U.S.C. § 1326(d).
The panel applied the majority’s holding of the recently
published amended opinion in United States v. Bastide-
Hernandez, 2021 WL 2909019 (9th Cir. 2021), which held
that Karingithi v. Whitaker and Aguilar Fermin v. Barr
compel the conclusion 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 that the district
court thus erred in dismissing the indictment. The panel held
that the defendant failed to show that he could satisfy the
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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UNITED S TATES V. G ONZALEZ -VALENCIA 3
§ 1326(d) requirements based simply on the NTA’s lack of
date and time information, standing alone. The panel
allowed the defendant to collaterally attack the underlying
removal order on remand on other grounds, but only if he
could 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.

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4 UNITED S TATES V. G ONZALEZ -VALENCIA
ORDER
The opinion filed on February 12, 2021, and published
at 987 F.3d 1239 (9th Cir. 2021) is withdrawn. A new
opinion is filed concurrently with this order. Accordingly,
Defendant-Appellee’s petition for rehearing en banc filed on
March 10, 2021, is DENIED as moot. [Dkt No. 46].
Subsequent petitions for rehearing and petitions for
rehearing en banc may be filed.
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 amended opinion in United States v.
Bastide-Hernandez, —F.4th —, 2021 WL 2909019 (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
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

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UNITED S TATES V. G ONZALEZ -VALENCIA 5
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
excused Gonzalez-Valencia from having to satisfy the
collateral attack requirements in 8 U.S.C. § 1326(d).1
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

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6 UNITED S TATES V. G ONZALEZ -VALENCIA
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 2909019, at *3.2 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 three requirements of § 1326(d). See
id. Indeed, “each of the statutory requirements . . . is
mandatory.” United States v. Palomar-Santiago, 141 S. Ct.
1615, 1622 (2021). 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
opportunity for judicial review; and (3) the entry of the order was
fundamentally unfair.” 8 U.S.C. § 1326(d).
2 We note that our holding in Bastide-Hernandez is consistent with
the Attorney General’s recent decision in Matter of L-E-A-, 28 I. & N.
Dec. 304, 306 n.3 (U.S. Att’y Gen. 2021) (“Consistent with
administrative and judicial precedent, I also conclude that jurisdiction
over this matter is proper even though respondent’s charging document
lacked certain information about the first hearing.”).

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UNITED S TATES V. G ONZALEZ -VALENCIA 7
show that his 2001 removal proceedings were fundamentally
unfair based on the NTA’s lack of date and time information.
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.
Gonzalez-Valencia’s argument is foreclosed by
Palomar-Santiago. We therefore 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 Bastide-Hernandez, 2021 WL 2909019,
at *4.
We reverse the district court’s dismissal of the
indictment and remand for further proceedings consistent
with this opinion.
REVERSED and REMANDED.

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