The petitioner, a citizen of El Salvador, was arrested for allegedly entering the United States without inspection by U.S. immigration officials. The Immigration Judge (“IJ”) assigned to her case sent her notice of a February 9, 1993, deportation hearing by certified mail to her address in Jamaica, New York. Although postal records indicate that delivery of the notice was attempted on two separate occasiоns and notification was left that the post office was holding a delivery for the petitioner, no one signed for the delivery or claimed the mailing at the post office. Accordingly, the notification was ultimately returned to the IJ as “unclaimed.” As-the petitioner failed to attend the February 9 hearing, the IJ entered an order of deportation in absentia. The petitioner argues that, under these circumstances, she wаs not afforded the notice required under § 242B of the Immigration and Nationality Act, 8 U.S.C. § 1 et seq. (the “Act”), and the Due Process Clause of the Fifth Amendment, and that it was therefore improper for the IJ to enter an in absentia order of deportation. In addition, based on the IJ’s initial failure to recognize attorney Bruno Joseph Bembi as her counsel of record, the petitioner argues that the IJ interfered with her constitutional and statutory right to counsel in deportation proceedings.
We find these claims to be without merit. The Board of Immigration Appeals (“BIA”) has previously found that, where an alien is sent notice of an upcoming deportation hearing by certified mail, the fact that the notice is returned “unclaimed” does not render that notice inadequate under the § 242B provision governing in absentia deportation orders. Rather, the BIA has appliеd a presumption that, so long as the IJ sent proper notification to the alien’s last known address by certified mail, notice was adequate, unless the alien can present evidence that the post office did not in fact attempt to deliver the notice or that any attempted delivery was somehow performed improperly. We find this to be a reasonable interpretation of the Act and one that comports with the requirements of Due Process. In this case, the BIA did not abuse its discretion in upholding the IJ’s refusal to reopen petitioner’s deportation proceedings based on its conclusion that the petitioner had failed to rebut the presumption of adequate delivery of notice. Nor do we find any merit in the petitioner’s claim that she was denied assistance of counsel in her deportation proceedings.
I. Background
The petitioner, Nery Esperanza Fuentes-Argueta (“Fuentes” or “petitioner”), was arrested at or near Laredo, Texas, on August 24, 1992. A citizen of El Salvador, she is alleged to have crossed the border from Mexico into Texas on August 23, 1992, without inspection by U.S. immigration officials in violation of 8 U.S.C. § 1251(a)(1)(B). Al
District Counsel for the Immigration and Naturalization Service (“INS”) in San Antonio, Texas, received a letter dated September 29, 1992, from attorney Bruno Joseph Bembi informing the INS that Fuentes had moved to Jamaica, New York, providing the INS with her new address, and requesting thаt her ease file be transferred to an INS office in New York City. The IJ assigned to the petitioner’s case responded to Bembi in mid-October, advising him that his September 29 letter could not serve as a formal motion for a change of venue because Bembi had not yet submitted a notice of appearance as counsel for Fuentes and because his letter did not allege facts normally set forth in а motion for change of venue. The IJ’s letter also informed Bembi that Fuentes had been sent a notice on October 14 informing her that her deportation hearing was set to take place in San Antonio, Texas on November 17, 1992.
The IJ sent the October 14,1992, notice to Fuentes via certified mail at her address in Jamaica, New York. The notification was signed for at that address, and Fuentes concedes that she received it. Nevertheless, she failed to appear at her November 17 deportation hearing. Pursuant to a request from counsel for the INS, the IJ rescheduled the petitioner’s hearing for February 9, 1993. On November 18, 1992, the IJ sent another Notice of Hearing in Deportation Proceedings to Fuentes, again by certified mail, informing her of the location, date, and time of the rescheduled hearing. According to рostal records, two attempts were made to deliver the notification at the petitioner’s Jamaica, New York, address, and notices were left indicating that the post office was holding mail for her. Because no one signed for the notification on either occasion and the petitioner did not claim the delivery at the post office, the notification was ultimately returned to the IJ “unclаimed.”
The petitioner failed to appear at her rescheduled, February 9, 1993, deportation hearing. Accordingly, the IJ issued an order of deportation in absentia, a copy of which was sent to the petitioner. In late August, 1993, Bembi filed, for the first time, a notice of appearance as counsel for the petitioner, and he moved to reopen her deportation proceedings. In an order dated October 8, 1993, the IJ denied the motion to reopen, and the petitioner did not exercise her right to appeal to the BIA
Instead, on September 9, 1994, Fuentes again moved to reopen her deportation proceedings. In the memorandum supporting her motion, the petitioner argued, inter alia, that new evidence — namely, the postal service’s return receipts indicating that the notice of the February 9 deportation hearing had been returned to the IJ “unclaimed”— supported her position that she had never received the notice. To further bolster her claim, the petitioner included an affidavit in which she states: “I was not aware that I had a hearing.” The IJ again denied the petitioner’s motion to reopen, concluding that the mailing of the notice to Fuentes’s last known address was sufficient to satisfy аny notice requirements under the Act. The petitioner filed a timely appeal with the BIA.
The BIA affirmed the IJ’s decision denying the petitioner’s motion to reopen her deportation proceedings. In its decision, the BIA relied on In re Grijalva, Interim Decision 3246,
II. Discussion
We have jurisdiction to review decisions of the Board of Immigration Appeals pursuant to 8 U.S.C. § 1105a(a), and we review a BIA decision to deny an alien’s motion to reopen deportation proceedings “only to determine whether the decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” Vargas v. INS,
A. Insufficient Notice Under the Act
Prior to 1990, § 242(b) of the Act, 8 U.S.C. § 1252(b), was the only statutory provision authorizing immigration judges to issue deportation orders in absentia. See Romero-Morales v. INS,
[i]f any alien has been given a reasonable opportunity to be present at a proceeding under this section, and without reasonable cause fails or refuses to attend or remain in attendance at such prоceeding, the special inquiry officer may proceed to a determination in like manner as if the alien were present.
8 U.S.C. § 1252(b) (emphasis supplied). As for notice, § 242(b)(1) instructs the Attorney General to prescribe regulations providing the alien with “notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceedings will be hеld.” 8 U.S.C. § 1252(b)(1).
In 1990, however, without repealing § 242(b), Congress amended the Act to add § 242B, a more stringent provision requiring (rather than merely permitting) the1 IJ to issue in absentia orders of deportation where the INS establishes deportability by “clear, unequivocal, and convincing evidence.” 8 U.S.C. § 1252b(c)(l); see Romero-Morales,
“Any alien who, after written notice required under subsection (a)(2)• of this section has been provided to the alien or the alien’s counsel of record, does not attend a proceeding under section 1252 of this title, shall be ordered deported under ... this title in absentia if the Service establishes by clear, unequivocal, and convincing evidencе that the written notice was so provided and that the alien is deportable. The written notice ... shall be considered sufficient for purposes of this paragraph if provided at the most recent address provided [by the alien].”
8 U.S.C. § 1252b(c)(l) (emphasis supplied). Moreover, subsection (c)(3)(B) of § 242B provides for the reopening of deportation proceedings in cases where “the alien did not receive noticе in accordance with subsection (a)(2) of this section.” 8 U.S.C. § 1252b(c)(3)(B).
The petitioner urges that we apply § 242B’s notice requirements in evaluating the IJ’s efforts to inform her of her February 9 deportation hearing. Specifically, Fuentes contends that, because the language in § 242B(a)(2), which sets forth the notice requirement for deportation hearings, is identical to that of subsection (a)(1), which sets out the notice requirements for orders to show
We conclude that, even under the stricter notice requirements of § 242B, the IJ provided Fuentes with adequate notice оf her second deportation hearing.
presentation of] substantial and probative evidence such as documentary evidence from the Postal Service, third party affidavits, or other similar evidence demonstrating that there was improper delivery or that nondelivery was not due to the respondent’s failure to provide an address where he could receive mail.
Id.
In setting forth this presumption of adequate notice where certified mail delivery is attempted, the BIA in Grijalva necessarily drew a distinction between the requirements for service of notices of deportation proceedings and the requirements for service of orders to show cause; The Board reasoned that, while § 242B employs the same language to describe the general notice requirements for each, orders to show cause and notices of deportation proceedings are not treated identically elsewhere in § 242B. In particular, § 242B(c)(l) — applicable to notices of deportation proceedings but not to orders to show cause — provides that “[t]he written notice by the Attornеy General shall be considered sufficient for purposes of this paragraph if provided at the most recent address provided” by the alien. 8 U.S.C. § 1252b(e)(l). The BIA interpreted this sentence to mean that there is no requirement that anyone actually sign for a notification sent by certified mail — only that it be sent to the alien’s last known address. Grijalva,
We find no basis on which to conclude that this reading of § 242B(c)(l) is in any way at odds with congressional intent. See Osorio,
Applying Grijalva, the BIA concluded in the instant case that the petitioner had not rebutted the presumption of effective service. We find no abuse of discretion in this conсlusion. As evidence of nondelivery, Fuentes submitted only her own affidavit, which, in fact, nowhere states that the postal service had not attempted to deliver the notice of the February 9 hearing or had otherwise improperly disposed of the notice. Rather, the petitioner merely declares: “I was not aware that I had a hearing.” Fuentes having failed to rebut the presumption of effective serviсe set out in Grijalva, the BIA appropriately upheld the IJ’s decision denying the petitioner’s motion to reopen her deportation proceedings.
B. Violation of Due Process Clause
The petitioner next argues that the Board’s reading of § 242B — allowing for in absentia deportation where the alien’s notice of deportation proceedings is returned “unclaimed” to the IJ — violates the Due Process Clause of the Fifth Amendment. We find no merit in this claim.
It cаnnot be disputed that the use of certified mail to convey notices of deportation proceedings generally fits well within the bounds of the process due to a litigant or prospective litigant. The courts have repeatedly upheld even the use of regular, first-class mail as a constitutionally adequate means of service. See Weigner v. City of New York,
C. Right to Counsel
Finally, the petitioner argues that the IJ violated her right to counsel by refusing to recognize Bembi as her attorney prior to his filing of a formal notice of appearance in August, 1993, and, in particular, by failing to notify Bembi of her February 9,1993, depor
III. Conclusion
In sum, we find no abuse of discretion on the part of the BIA in upholding the IJ’s denial of the petitioner’s motion to reopen her deportation proceedings. Nor do we find that the BIA’s decision impinged on the petitioner’s due process rights, or that the IJ in any way acted to deny the petitiоner her right to counsel.
Accordingly, the order of the BIA is affirmed, and the petition for review of the BIA order is denied.
Notes
. An “order to show cause" notifies an alien that deportation proceedings are being brought against him. The order must describe, inter alia, "[t]he nature of the proceedings against the alien,” "[t]he acts or conduct alleged to be in violation of law,” and "[t]he charges against the alien and the statutory provisions alleged to have been violated." 8 U.S.C. § 1252b(a)(l); see also 8 C.F.R. § 242.1(b) (1996). The record indicates, and the parties do not dispute, that Fuentes was personally served with an order to show cause immediately following her arrest in Texas.
. The BIA established, in a case arising under §'242(b), that where certified mail is employed to send an alien a notice to show cause, "the certified mail receipt [must] be signed by the respondent оr a responsible person at the respondent’s address and returned to effect ... service.” In re Huete, Interim Decision 3144,
. While urging that we look to § 242B for the appropriate notice standard, the petitioner simultaneously argues that § 242(b) provides the standard under which the BIA should have reviewed the IJ decision denying her motion to reopen proceedings. In particular, Fuentes invokes § 242(b)’s requirement that an IJ should not order deportation in absentia unless the alien fails to attend a deportation proceeding "without reasonable cause," 8 U.S.C. § 1252(b) (emphasis supplied), as the appropriate standard for reviewing the IJ’s decision. Her lack of notice, she claims, constitutes "reasonable cause” for her failure to attend. Section 242(b), however, has been interpreted to permit even the use of first class mail in sending notices of deportation hearings. See, e.g., United States v. Estrada-Trochez,