United States v. Juan Bastide-Hernandez ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30006
Plaintiff-Appellant,
D.C. No.
v. 1:18-cr-02050-
SAB-1
JUAN CARLOS BASTIDE-HERNANDEZ,
AKA Jesus Chavez-Gongoria, AKA
Domingo Chavez-Lopez, AKA OPINION
Francisco Soto Hernandez,
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 2, 2021
Before: Danny J. Boggs, * Milan D. Smith, Jr., and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Boggs;
Dissent by Judge Milan D. Smith, Jr.
*
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. BASTIDE-HERNANDEZ
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, in a case in which the
district court held that a defective notice to appear (NTA)
lacking time and date information did not provide the
immigration court with jurisdiction to enter an order of
removal.
Observing that Karingithi v. Whitaker, 913 F.3d 1158(9th Cir. 2019), and Aguilar Fermin v. Barr, 958 F.3d 887(9th Cir. 2020), created some confusion as to when
jurisdiction actually vests, the panel held that 8 C.F.R.
§ 1003.14(a) means what it says and controls: 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.
The panel wrote that while a defective NTA does not
affect jurisdiction, it can create due-process violations. The
panel wrote that because the defendant chose not to address
in his brief any of the requirements under 8 U.S.C. § 1326(d)
for a collateral attack on the validity of the underlying
removal, he failed to show that he can satisfy the § 1326(d)
requirements based on the NTA’s lack of date and time
information. The panel wrote that on remand, which is
required because the basis for the district court’s dismissal
was invalid, the defendant may be able to collaterally attack
**
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. BASTIDE-HERNANDEZ 3
the underlying removal order on other grounds if he can meet
the requirements of § 1326(d).
Dissenting, Judge M. Smith wrote that Karingithi and
Aguilar Fermin compel the conclusion that dismissal of the
indictment was proper because the immigration court never
cured the omission of the date and time of the hearing from
the NTA, thereby depriving the immigration court of
jurisdiction to issue a removal order.
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, Yakima, Washington, for Defendant-Appellee.
4 UNITED STATES V. BASTIDE-HERNANDEZ
OPINION
BOGGS, Circuit Judge:
The United States challenges the district court’s
dismissal of an indictment charging Juan Carlos Bastide-
Hernandez with illegal reentry after removal, in violation of
8 U.S.C. § 1326. We reverse.
I
Bastide-Hernandez, a citizen and native of Mexico, first
entered the United States without inspection in 1995 when
he was 17 years old. Bastide-Hernandez, who is married to
a United States citizen and has a United States citizen
teenage son, has had extensive interaction with the
immigration system. In April 2006, Bastide-Hernandez was
placed in removal proceedings by U.S. Immigration and
Customs Enforcement (“ICE”). On April 26, ICE served
him two Notices to Appear (“NTA”), the first sent to his
residence and the second to his updated address at the
immigration detention facility in Tacoma, Washington.
Neither NTA specified the date and time of the hearing,
instead stating that the hearing would occur “on a date to be
set [and] a time to be set.” On May 12, the immigration court
sent Bastide-Hernandez a curative Notice of Hearing
(“NOH”) by fax to an unidentified custodial officer at the
detention center, which set the hearing date for June 14,
2006. Bastide-Hernandez denies ever receiving the NOH
and there is no paperwork indicating when or if the unnamed
custodial officer in fact served the NOH on Bastide-
Hernandez.
The removal hearing was held on June 14. What actually
occurred during the hearing is unknown, as the government
failed to produce the requested hearing transcript, so we have
UNITED STATES V. BASTIDE-HERNANDEZ 5
no specific evidence that Bastide-Hernandez was in
attendance. We do know that the immigration court entered
an order of removal (with no indication that it was issued in
absentia), which was the basis for Bastide-Hernandez’s 2018
§ 1326 indictment for illegal re-entry. The district court
dismissed the indictment, holding that a defective NTA
lacking time and date information did not provide the
immigration court with jurisdiction to enter an order of
removal.
II
The district court’s decision incorrectly relied on the
reasoning of Pereira v. Sessions, 138 S. Ct. 2105 (2018), and
was issued prior to this court’s decisions in Karingithi v.
Whittaker, 913 F.3d 1158 (9th Cir. 2019), and Aguilar
Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020). Under
Karingithi and Aguilar Fermin, a defective NTA does not
divest the immigration court of jurisdiction. Karingithi held
that regulations promulgated by the Attorney General 1
define when the jurisdiction of immigration courts vests,
rather than the statute 2 authorizing those regulations. Failure
to include the date and time of a removal hearing in an NTA
does not deprive the immigration court of subject-matter
jurisdiction so long as the information is provided in a
subsequent NOH. Karingithi, 913 F.3d at 1161–62.
Similarly, Aguilar Fermin held that failure to include the
address of the immigration court in an NTA does not deprive
the immigration court of jurisdiction, so long as a subsequent
NOH provides that information. Aguilar Fermin, 958 F.3d
18 C.F.R. § 1003.14(a), 8 C.F.R. § 1003.15(b), and 8 C.F.R.
§ 1003.18(b).
2
8 U.S.C. § 12296 UNITED STATES V. BASTIDE-HERNANDEZ
at 893–95. The regulations provide that “[j]urisdiction vests
. . . when a charging document is filed with the Immigration
Court,” 8 C.F.R. § 1003.14(a), and requires the NTA include
“the time, place and date of the initial removal hearing,
where practicable.” 8 C.F.R. § 1003.18(b).
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. 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.
III
While a defective NTA does not affect jurisdiction, it can
create due-process violations. A person is guilty of the
offense of illegal reentry if he “has been denied admission,
excluded, deported, or removed [from] the United States . . .
and thereafter enters, attempts to enter, or is at any time
found in, the United States.” 8 U.S.C. § 1326(a). Section
1326 specifically contemplates that defects in an original
removal proceeding may vitiate a later criminal proceeding
UNITED STATES V. BASTIDE-HERNANDEZ 7
under § 1326(a). A defendant who is prosecuted for
violating this criminal statute “has a due process right to
collaterally attack the underlying deportation order, because
it serves as a predicate element of the crime for which he is
charged.” United States v. Gonzales-Villalobos, 724 F.3d
1125, 1129 (9th Cir. 2013).
To mount a collateral attack on the validity of an
underlying removal order, the defendant must demonstrate
that “(1) the [noncitizen] exhausted any administrative
remedies that may have been available to seek relief against
the 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); see also United
States v. Ochoa-Oregel, 904 F.3d 682, 684 (9th Cir. 2018).
Here, the government claims that Bastide-Hernandez
failed to meet any of the requirements of § 1326(d),
including because he failed to exhaust his administrative
remedies during the 2006 immigration proceeding and
during a later 2014 immigration proceeding, and because he
failed to show that his immigration proceedings were
fundamentally unfair based on the NTA’s lack of date and
time information. Bastide-Hernandez claims on appeal that
he did not need to satisfy any of the requirements of
§ 1326(d) because the immigration court lacked jurisdiction.
He chose not to address any of the § 1326(d) requirements
in his brief. Thus, he has failed to show that he can satisfy
the § 1326(d) requirements based on the NTA’s lack of date
and time information. However, as discussed below in
section IV, Bastide-Hernandez may be able to collaterally
attack the underlying removal order on other grounds, if he
can meet the requirements of § 1326(d).
8 UNITED STATES V. BASTIDE-HERNANDEZ
Although exhaustion and deprivation of judicial review
are two separate requirements, this court has recognized
“three overlapping categories” that satisfy both: 1) the
failure of an immigration judge to inform a noncitizen of his
right to appeal his deportation order to the Board of
Immigration Appeals (“BIA”); 2) the failure of an
immigration judge to inform a noncitizen that he is eligible
for a particular kind of discretionary relief; and 3) where an
alleged waiver of the right to appeal to the BIA was not
“considered and intelligent” under the Due Process clause of
the Fifth Amendment. Gonzales-Villalobos, 724 F.3d
at 1130–31. The government bears the burden of proving
the validity of a waiver. United States v. Ramos, 623 F.3d
672, 680 (9th Cir. 2010). This court “indulge[s] every
reasonable presumption against waiver, and do[es] not
presume acquiescence in the loss of fundamental rights.”
Ibid. (quotation marks and citation omitted).
To prove the third requirement, prejudice and
fundamental unfairness exist if a noncitizen’s “due process
rights were violated by defects in the underlying deportation
proceeding, and if he suffered prejudice as a result of the
defects.” Ramos, 623 F.3d at 680 (quotation marks and
citation omitted). As clarified at oral argument, the
existence of the three elements that are prerequisites to a
§ 1326(d) challenge has not yet been put in issue, as the case
was dismissed on jurisdictional grounds.
IV
On remand, Bastide-Hernandez may be able to
collaterally attack the underlying removal order, if he can
meet the requirements of 8 U.S.C. § 1326(d). Relevant
statutory and regulatory provisions provide that notice to the
noncitizen shall be “given in person” or by mail to either the
noncitizen or his counsel of record. See 8 U.S.C.
UNITED STATES V. BASTIDE-HERNANDEZ 9
§ 1229(a)(1); 8 C.F.R. § 1003.14(a); and 8 C.F.R.
§ 1003.32(a). The Executive Office of Immigration Review
(“EOIR”) operating manual promulgated by the Office of the
Chief Immigration Judge directs “that a NOH must be served
in person ‘when practicable’ and otherwise may be served
by mail; service by fax is not permitted.” 3 Though neither
the statute, regulations, nor manual are clear as to the effect
of a custodial officer giving a fax in person to the detainee,
we again note that to succeed under 8 U.S.C. § 1326(d), an
alien must demonstrate, in addition to the other two statutory
requirements, that “the entry of the order was fundamentally
unfair.”
Also, we lack any record from the immigration-court
proceeding, so we do not know if the immigration judge
informed Bastide-Hernandez of his right to appeal to the
BIA or if Bastide-Hernandez might have been eligible for
discretionary relief and if he was, whether the immigration
judge so informed him. Further, although Bastide-
Hernandez appears to have signed the waiver-of-right-to-
appeal box on the back of the NTA, the district court made
no finding as to whether the waiver was knowing and
intelligent, and Bastide-Hernandez does not address the
issue in his brief.
Additionally, questions may remain regarding actual
receipt of the fax by the custodian or by Bastide-Hernandez,
whether this is relevant under section 1326(d), and, if so,
whether Bastide-Hernandez was prejudiced by any service-
of-process deficiencies if he actually appeared by
3
Office of the Chief Immigration Judge, Executive Office for
Immigration Review, “Uniform Docketing System Manual,”
(Dec. 2013), available at: https://www.justice.gov/sites/default/files/eoir/
legacy/2014/04/07/DocketManual_12_2013.pdf.
10 UNITED STATES V. BASTIDE-HERNANDEZ
videoconference. Because the district court’s basis for
dismissing the indictment was invalid, the case must be
remanded for further proceedings, in accordance with the
holdings in this opinion. All factual matters and any
additional legal challenges remain in the purview of the
district court.
The district court is REVERSED, and the case
REMANDED.
M. SMITH, Circuit Judge, dissenting:
In my view, Karingithi v. Whitaker, 913 F.3d 1158 (9th
Cir. 2019), and Aguilar Fermin v. Barr, 958 F.3d 887 (9th
Cir. 2020), compel the conclusion that dismissal of the
indictment in this case was proper because the Immigration
Court never cured the omission of the date and time of the
hearing from Bastide-Hernandez’s Notice to Appear (NTA),
thereby depriving the Immigration Court of jurisdiction to
issue a removal order. Without a valid removal order, the
Government was unable to establish one of the elements of
the charged offense of illegal reentry. Accordingly, I would
affirm the district court.
ANALYSIS
A.
In Karingithi, we held that “the regulations define when
jurisdiction vests” in the immigration court. 913 F.3d at
1160. The regulations state that jurisdiction vests upon the
filing of an NTA, and they require that the NTA include “the
time, place and date of the initial removal hearing, where
practicable.” 8 C.F.R. § 1003.18(b). When including the
UNITED STATES V. BASTIDE-HERNANDEZ 11
information in the NTA is impracticable, “the Immigration
Court shall be responsible for scheduling the initial removal
hearing and providing notice to the government and the alien
of the time, place, and date of hearing.” 8 C.F.R.
§ 1003.18(b). There is no such exception for
impracticability with respect to the requirement that the
NTA include “[t]he address of the Immigration Court where
the Service will file the Order to Show Cause and Notice to
Appear.” 8 C.F.R. § 1003.15(b)(6). The address of the court
where the NTA will be filed may or may not be the same as
the place where the hearing will be held; the two regulations
thus refer to different information. 1 In practical terms, the
address of the court where the NTA will be filed is important
because that is where the alien must file his own documents,
such as motions to the IJ and changes of address.
The Karingithi court held that because the regulations
require the inclusion of the date, time, and place of the
hearing only where practicable, omission of that information
in the NTA does not deprive the immigration court of
jurisdiction to issue an order of removal. Importantly,
Karingithi’s holding was specifically conditioned on a
critical fact in the case: that the alien later “received [notice
of the time, date, and place of the hearing] in a timely
fashion.” 913 F.3d at 1162. Karingithi therefore only
decided the question of whether the immigration court had
jurisdiction over an alien who received the required
information later, separately from the initial NTA. It
specifically reserved ruling on the question in this case,
which is whether jurisdiction vests even when the alien is
1
For clarity, I refer to the mandatory information (the address of the
immigration court where the Service will file the NTA) as “the address,”
or “the address for filing” and the permissive information (the place of
the hearing) as “the place” or “the place of hearing.”
12 UNITED STATES V. BASTIDE-HERNANDEZ
never provided with the time, date, and place of his removal
hearing. Id.
When applied to the separate question of the address
where the NTA will be filed, Karingithi’s analysis dictates
that jurisdiction does not vest in the immigration court if the
NTA excludes the address. If the regulations determine
when jurisdiction vests, and the regulation’s optional
inclusion of the hearing information allows a later cure, then
the regulation’s mandatory information should be required
for jurisdiction to vest.
Curiously, a Ninth Circuit case that addressed that issue
came out the other way. In Aguilar Fermin v. Barr, we let
stand the BIA’s conclusion that omitting the address from
the NTA did not deprive the immigration court of
jurisdiction. We treated the address for NTA filing as
synonymous with the place of the removal hearing. 958 F.3d
at 895. Simultaneously, Aguilar Fermin relied on deference
to the BIA’s interpretation, deeming it not plainly erroneous.
Id. Aguilar Fermin and Karingithi thus seem to be in
tension, stemming from treating “place of the hearing” and
“address of the immigration court where the NTA will be
filed” as interchangeable terms despite their clearly different
meanings and location in different subsections of the
regulations. In my view, the relevant case is Karingithi, and
it supports the district court’s ruling.
B
Bastide-Hernandez’s NTA did not include the date or
time of the hearing. Moreover, he never received that
information later. Under Karingithi, failure to cure the
omission of the date and time of the hearing renders the
NTA’s sufficiency an open question but Karingithi provides
the basis for addressing that issue.
UNITED STATES V. BASTIDE-HERNANDEZ 13
Critically, Karingithi’s holding was based on the fact
that the alien in that case later received a notice listing the
time, date, and place of the hearing, which essentially
rendered harmless the NTA’s omission of that information,
and thus vested the immigration court with jurisdiction to
issue a removal order. The court wrote, “[T]he hearing
notices Karingithi received specified the time and date of her
removal proceedings. Thus, we do not decide whether
jurisdiction would have vested if she had not received this
information in a timely fashion.” 913 F.3d at 1162.
Even Aguilar Fermin rests on the premise that the NTA’s
deficiency was later cured. In that case, the court wrote,
“The question then, is what is the remedy when the address
is omitted from the NTA?” and answered, “providing the
alien and the government with the complete notice at a later
time.” Aguilar Fermin, 958 F.3d at 895. Following the
BIA’s decision in Matter of Rosales Vargas, 27 I. & N. Dec.
745 (B.I.A. 2020), on the question of location, Aguilar
Fermin stated, “Rosales Vargas and Karingithi are
consistent. Under both decisions, an omission of some of
the information required by § 1003.14(a) and
§ 1003.15(b)(6) can be cured and is not fatal.” 958 F.3d
at 895 (emphasis added). Thus, Aguilar Fermin purported
to be consistent with Karingithi, and Karingithi treated the
regulatory requirements for an NTA as jurisdictional, though
able to be satisfied through a subsequent NOH. Where the
alien was never provided with information omitted from the
NTA, nothing in Aguilar Fermin suggests that the
immigration court obtains jurisdiction to issue a valid
removal order.
C
In my view, the majority opinion represents a clear
rejection of our binding precedent. Under the majority’s
14 UNITED STATES V. BASTIDE-HERNANDEZ
view, filing any document that purports to be a Notice to
Appear with the Immigration Court is enough to vest
jurisdiction with the IJ, even if that document does not
comply with the regulatory requirements for an NTA, and
those deficiencies are never cured. This interpretation
ignores Karingithi’s holding that the regulations—and
specifically the regulatory requirements for an NTA—
control when jurisdiction vests.
Moreover, the majority ignores that the relevant
regulation prohibits the method of service used to serve the
Notice of Hearing (NOH) in this case. The regulation
permits service of an NOH only by personal delivery or
certified mail. 8 C.F.R. § 1003.32. Here, the Immigration
Court faxed Bastide-Hernandez’s NOH to his unspecified
“Custodial Officer” at the detention facility where he was
housed. There is no evidence in the record demonstrating
that Bastide-Hernandez ever received the NOH. Our
precedent dictates that the IJ lacked jurisdiction to enter a
removal order under these circumstances.
D
I would further hold that the district court was correct in
determining that Bastide-Hernandez did not need to satisfy
the collateral attack requirements in § 1326(d).
“8 U.S.C. § 1326 prohibits any alien from entering the
United States after he has ‘been denied admission, excluded,
deported or removed[.]’” United States v. Muro-Inclan,
249 F.3d 1180, 1182 (9th Cir. 2001) (quoting 8 U.S.C.
§ 1326(a)). A defendant who is being prosecuted for
violating this criminal statute may collaterally attack his
underlying deportation order. See United States v. Gonzales-
Villalobos, 724 F.3d 1125, 1129 (9th Cir. 2013). To mount
a successful collateral attack, a defendant must demonstrate:
UNITED STATES V. BASTIDE-HERNANDEZ 15
(1) he “exhausted any administrative remedies that may have
been available to seek relief against the order;” (2) his
“deportation proceedings at which the order was issued
improperly deprived [him] of the opportunity for judicial
review; and (3) the entry of the order was fundamentally
unfair.” 8 U.S.C. § 1326(d).
It is an open question in this circuit under recent case law
whether a defendant must satisfy § 1326(d)’s requirements
even if the immigration court lacked jurisdiction to enter the
removal order. But we addressed a similar situation in
Wilson v. Carr, 41 F.2d 704, 706 (9th Cir. 1930). There, the
alien objected to his deportation on the ground that he had
not been convicted of a “crime of moral turpitude”
punishable by one year of imprisonment because the statute
under which he was charged allowed him to set aside his
guilty verdict upon his successful completion of probation.
Wilson, 41 F.2d at 705–06. The court noted that “[t]he
prosecution against him is still pending in the state court; no
sentence has been pronounced for the crime charged, and no
sentence will follow in the future, provided he fulfills all the
terms and condition of his probation.” Id. at 706.
Consequently, the basis for his “deportation c[ould] not be
sustained.” Id. Notably, the court held that “if the order is
void on its face for want of jurisdiction, it is the duty of this
and every other court to disregard it.” Id.; see also Noriega-
Lopez v. Ashcroft, 335 F.3d 874, 884 (9th Cir. 2003)
(holding that where the BIA lacks authority to enter a
removal order, the removal order is “a legal nullity”).
District courts in this circuit have relied on Wilson to
conclude that a defendant is not required to satisfy § 1326(d)
requirements upon a showing that the immigration court
lacked jurisdiction over the defendant’s removal proceeding.
See United States v. Arteaga-Centeno, 353 F. Supp. 3d 897,
16 UNITED STATES V. BASTIDE-HERNANDEZ
901–03 (N.D. Cal. 2019), vacated on other grounds by
United States v. Arteaga-Centeno, No. 18-cr-00332, 2019
WL 1995766 (N.D. Cal. May 6, 2019); see also United
States v. Rosas-Ramirez, 424 F. Supp. 3d 758 (N.D. Cal.
2019); United States v. Martinez-Aguilar, 2019 WL
2562655, at *6 (C.D. Cal. June 13, 2019); United States v.
Quijada-Gomez, 360 F. Supp. 3d 1084, 1094 (E.D. Wash.
2018). This reasoning is persuasive for two reasons.
First, upon a defendant’s showing of a lack of
jurisdiction in the immigration court, the government
“cannot establish all of the requisite elements of illegal
reentry under 8 U.S.C. § 1326[,]” specifically “the existence
of a valid removal order.” Martinez-Aguilar, 2019 WL
2562655, at *6. Bastide-Hernandez’s defense to the crime
charged therefore does not constitute a “collateral challenge”
to his deportation order. Without jurisdiction vesting in the
immigration court, “there is no removal order to be
collaterally attacked.” Arteaga-Centeno, 353 F. Supp. 3d at
903. In other words, a necessary element of the
government’s case is absent, and the indictment should
therefore be dismissed.
Second, the reasoning in Wilson “comport[s] with
general rules regarding challenges for jurisdiction[.]”
Quijada-Gomez, 360 F. Supp. 3d at 1094–95. The
requirements of § 1326(d) “presume the existence of some
proceeding through which the defendant could have raised
the basis for the challenge.” Id. at 1094. If the immigration
court lacks jurisdiction, however, then the defendant cannot
be expected to recognize the validity of the proceeding—let
alone challenge the court’s jurisdiction during that
proceeding. See id. at 1094–95. Just as § 1326(d)’s
limitations “would not bar a defendant from pointing out that
what the prosecutor alleges is a prior deportation order is in
UNITED STATES V. BASTIDE-HERNANDEZ 17
fact a blank piece of paper, it does not bar a challenge to an
immigration court’s jurisdiction that would give the
deportation order the same legal effect.” Id.
CONCLUSION
Faithful application of Karingithi requires us to affirm
the district court’s dismissal of the indictment. The
government failed to comply with multiple regulatory
requirements—both the information that must be provided
to the alien and the manner of service of process. In the
simplest terms, Karingithi requires regulatory compliance in
order for the IJ to have jurisdiction to issue a removal order.
By discarding Karingithi, the majority allows the
government to bypass the plain language of the relevant
regulations and the precedent upon which courts and parties
have relied. I respectfully dissent.