In re G-Y-R-, Respondent
Board of Immigration Appeals
Decided October 19, 2001
23 I&N Dec. 181 (BIA 2001)
Intеrim Decision #3458; U.S. Department of Justice, Executive Office for Immigration Review
(2) Entry of an in absentia order of removal is inappropriate where the record reflects that the alien did not receive, or could not be charged with receiving, the Notice to Appear that was served by certified mail at an address obtained from documents filed with the Immigration and Naturalization Service several years earlier.
Pro se
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Kimberley Joy Shepherd, Assistant District Counsel
BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman; SCHMIDT, HOLMES, HURWITZ, VILLAGELIU, FILPPU, GUENDELSBERGER, MATHON, ROSENBERG, GRANT, MOSCATO, MILLER, BRENNAN, ESPENOZA, OSUNA, and OHLSON, Board Members. Dissenting Opinion: JONES, Board Member, joined by COLE, Board Member.1
FILPPU, Board Member:
The Immigration and Naturalization Service appeals from the September 30, 1997, decision of the Immigration Judge to terminate proceedings. The appeal will be dismissed.
The respondent, a native and citizen of El Salvador, entered the United States without inspection on March 21, 1982, and 2 months later filed a Request for Asylum in the United States (Form I-589) with the Service.2 On June 22, 1991, the respondent submitted an Alien Address Report Card (Form I-104), updating her address with the Service.
On an undisclosed date in 1997, the Service mailed an appointment notice to the respondent for an asylum interview on July 2, 1997. That notice was mailed to the address provided by the respondent in 1991, but we do not know whether she actually received it. The respondent did not appear for her scheduled interview.
On July 7, 1997, the Service sent to the respondent, by certified mail to that same address, a Notice to Appear (Form I-862) for a removal hearing scheduled for September 30, 1997. We understand from the Service‘s brief that the respondent did not receive the Notice to Appear because it was returned to the Service by the Postal Service.
When the respondent did not appear for her hearing, the Service moved to proceed with the hearing in absentia. The Immigration Judge offered to administratively close proceedings to allow the Service time to serve the respondent again, but the Service elected to proceed on the record. Noting the long delay by the Service in acting upon the respondent‘s asylum application, the Immigration Judge was not satisfied that the respondent was aware of the removal proceedings, “thereby initiating the requirement that she keep the Court and Service informed of an address or bear the consequences fоr failure to do so.” The Immigration Judge terminated proceedings without prejudice. The Immigration Judge‘s order was thereafter sent by certified mail to the same address as that on the Notice to Appear, and that mailing was returned to the Immigration Court with the annotation “Moved Left No Address.”
On appeal, the Service contends that the Immigration Judge should not have terminated proceedings but should have instead ordered the respondent removed in absentia. The Service argues that proper notice of proceedings was effected through “attempted delivery to the last address provided by the alien” pursuant to
The respondent has not replied to the Service‘s appeal. It appears that she is unaware of these proceedings.
Thus, in this case, we know that the Notice to Appear was not personally served on the respondent but was sent to her by certified mail. We also know that the respondent did not receive the Notice to Appear because the certified mailing was returned. Further, we know that the respondent did not receive any notice of the hearing because the Notice to Appear contained her first and only notice of the date, time, and place of hеr removal hearing.
II. ISSUE
The issue is whether an Immigration Judge may order an alien removed in absentia when the Service mails the Notice to Appear to the last address it has for an alien, but the record reflects that the alien did not receive the Notice to Appear, and the notice of hearing it contains, and therefore has never been notified of the initiation of removal proceedings or the alien‘s address obligations under
This question can best be answered by a careful reading of the pertinent statutory provisions—specifically,
III. THE NOTICE TO APPEAR
A. Initiation of Proceedings
Removal proceedings are initiated when an alien is provided notice of proceedings through the service of a Notice to Appear.
In removal proceedings under section 240, written notice (in this section referred to as a “notice to appear“) shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien‘s сounsel of record, if any) specifying the following:
(A) The nature of the proceedings against the alien.
(B) The legal authority under which the proceedings are conducted.
(C) The acts or conduct alleged to be in violation of law. (D) The charges against the alien and the statutory provisions alleged to have been violated.
(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel under subsection (b)(1) of this section and (ii) a current list of counsel prepared under subsection (b)(2) of this section.
(F) (i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted respecting proceedings under section 240.
(ii) The rеquirement that the alien must provide the Attorney General immediately with a written record of any change of the alien‘s address or telephone number.
(iii) The consequences under section 240(b)(5) of failure to provide address and telephone information pursuant to this subparagraph.
(G) (i) The time and place at which the proceedings will be held.
(ii) The consequences under section 240(b)(5) of the failure, except under exceptional circumstances, to appear at such proceedings. (Emphasis added.)
Thus, as indicated by subparagraph (F)(i), the Notice to Appear apprises the alien that he or she has a particular address obligation respecting removal prоceedings: the necessity of providing an address “at which the alien may be contacted respecting proceedings under section 240.” As indicated by subparagraph (F)(iii), the Notice to Appear also warns the alien of the potential for an in absentia order if the alien fails to provide address information as instructed by the Notice to Appear—i.e., “[t]he consequences under section 240(b)(5) [the in absentia provisions] of failure to provide address and telephone information pursuant to this subparagraph.”
B. Means of Service
The alien must be properly served with the Notice to Appear before the particular address obligations of removal proceedings are fixed and the Immigration Judge is authorized to proceed in absentia. In the past, proceedings could be initiated by a notice of proceedings that was personally served on the alien or was sent by certified mail. See
However, if the alien does not actually receive the mailing, as is thе case before us, the statute specifies that the sufficiency of service will depend on whether there is “proof of attempted delivery to the last address provided by the alien in accordance with subsection (a)(1)(F).”
C. In Absentia Proceedings
If an alien fails to appear after he or she has received a notice of hearing—whether it is the notice of hearing contained in the Notice to Appear or a subsequent hearing notice—the Immigration Judge may proceed in absentia. The specific authorization for doing so is found in
CONSEQUENCES OF FAILURE TO APPEAR. —
(A) IN GENERAL.—Any alien who, after written notice required under paragraph (1) or (2) of section 239(a) has been provided to the alien or the alien‘s counsel of record, does not attend a proceeding under this section, shall be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable (as defined in subsection (e)(2) of this section). The written notice by the Attorney General shall be considered sufficient for purposes of this subparagraph if provided at the most recent address provided under section 239(a)(1)(F).
(B) NO NOTICE IF FAILURE TO PROVIDE ADDRESS INFORMATION.—No written notice shall be required under subparagraph (A) if the alien has failed to provide the address required under section 239(a)(1)(F). (Emphasis added.)
Thus, in cases where the hearing notice is sent by mail, the entry of an in absentia order is authorized when the alien has been given written notice of the removal hearing “at the most recent address provided under
Therefore, the critical question for in absentia cases involving mailed notice is whether the notice is mailed to an address that qualifies as an “address provided under
In this instance, the Service sent the respondent‘s Notice to Appear by certified mail to the most recent address it had on file—an address that she provided on a change of address form in 1991, 6 years before the Service аttempted to place her in proceedings. The Service has offered proof that it attempted to deliver the Notice to Appear to that address.
The question is whether the address used by the Service to mail the Notice to Appear and notice of hearing equates to “the last address provided by the alien in accordance with subsection (a)(1)(F),” as required for the initiation of proceedings under
A. Actual Notice and Section 239(a)(1)(F)
Due process requires that the alien be provided with notice of proсeedings and an opportunity to be heard. Landon v. Plasencia, 459 U.S. 21, 32-33 (1982); Bridges v. Wixon, 326 U.S. 135, 154 (1945); Kaoru Yamataya v. Fisher, 189 U.S. 86, 101 (1903). It is therefore critical that notice be reasonably calculated to apprise the alien of his or her scheduled hearing and the immigration charges levied by the Service. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
As a general matter, actual notice will always suffice. See, e.g., Matter of Pence, 905 F.2d 1107, 1109 (7th Cir.1990). Consequently, if an alien actually receives a Notice to Appear that is mailed to a
B. Constructive Notice and Section 239(a)(1)(F)
This case, however, does not involve actual notice of proceedings. Rather, it involves constructive notice in the form of undelivered written notice. The
The statute allows a hearing to be conducted in absentia, but only when the alien was sent written notice “at the most recent address provided under
In this regard, it is
Accordingly, we find that an address can be a
Once the advisals in the Notice to Appear are conveyed, serious consequences attach to an in absentia order of removal, and the avenues for relief are extremely limited. See
C. Section 239(a)(1)(F) in This Instance
In this instance, the Notice to Appear never reached the respondent, and the advisals were never conveyed. The Service argues that the failure of the Notice to Appear to reach the respondent does not mean the respondent lacked proper notice of proceedings. Rather, the Service maintains that the mailing of the Notice to Appear to the last address provided by the alien satisfies the statutory notice requirements. Moreover, it argues that the alien should be held accountable for the mail not reaching her because she was aware of her address obligations vis-à-vis the Service and, by implication, invited defective notice of proceedings when she failed to keep her address information current.
However, a
As we read the statute, its intent is to accomplish actual notice. In those instances where actual notice is not accomplished, the statute will permit constructive notice when the alien is aware of the particular address obligations of removal proceedings and then fails to рrovide an address for receiving notices of hearing. Under the Service‘s reading of the statute, however, no attempt at actual notice is ever necessary. The alien‘s address need not be current or even extant; it may even predate the legislative developments that created today‘s in absentia consequences. In other words, according to the Service, the notice requirements of the Act are satisfied whenever the Service uses the alien‘s last known address—no matter how old, incomplete, or obviously inadequate that address may be.
We do not agree. Simply mailing the Notice to Appear to an address authorized under
This does not mean, of course, that the alien must personally receive, read, and understand the Notice to Appear for the notice requirements to be satisfied. An alien can, in certain circumstances, be properly charged with receiving notice, even though he or she did not personally see the mailed document. If, for example, the Notice to Appear reaches the correct address but does not reach the alien through some failure in the internal workings of the household, the alien can be charged with receiving proper notice, and proper service will have been effected. See Matter of Grijalva, supra; Matter of Huete, supra. However, if we know that the Notice to Appear did not reach the alien and that the alien cannot be properly charged with receiving it, then the mailing address does not qualify as a ”
In summary, the Service may either serve the Notice to Appear and its notice of hearing by personal service or by mail. When the Service elects to serve by mail, the statute permits the Notice to Appear to be mailed to the last address the Service has on file for the alien. If the alien actually receives or can be
V. REGISTRATION
The Service correctly points out that the respondent has an obligation to provide the Service with a current address pursuant to the registration requirements of the Act. Virtually every alien in the United States is under an affirmative obligation to report address changes to the Attorney General, regardless of immigration status or circumstances.
The statutory consequences of failing to report an address change as required by
Although the failure to comply with
Finally, we observe that the regulations are consistent with our reading of the statute.
The regulations at
A statement that the alien must advise the Immigration Court having administrative control over the Record of Proceeding of his or her current address and telephone number and a statement that failure to provide such information may result in an in absentia hearing in accordance with § 3.26.
If the alien‘s address is not provided on the Order to Show Cause or Notice to Appear, or if the address on the Order to Show Cause or Notice to Appear is incorrect, the alien must provide to the Immigration Court where the charging document has been filed, within five days of service of that document, a written notice of an address and telephone number at which the alien can be contacted.
The Service establishes by clear, unequivocal, and convincing evidence that written notice of the time and place of proceedings and written notice of the consequences of failure to appear were provided to the alien or the alien‘s counsel of record.
Written notice to the alien shall be considered sufficient for purposes of this section if it was provided at the most recent address provided by the alien. If the respondent fails to provide his or her address as required under § 3.15(d), no written notice shall be required for an Immigration Judge to proceed with an in absentia hearing.
We understand the regulations to derive from and to track the language of the statute. See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312, 10,322 (1997) (noting that the regulations pertaining to section 240 of the Act “follow exactly the requirements of the Act“). We find the regulations to be consistent with the statute and our reading of it. Thus, the
VII. CONCLUSION
In this case, the Notice to Appear was mailed to an address that was provided before the respondent was placed in removal рroceedings, before she was apprised of the particular address obligations pertaining to removal proceedings, and before she was advised of the charges against her or the in absentia consequences of failing to keep her address information current for removal hearing purposes. The record clearly reflects that the Notice to Appear never reached the respondent. We therefore know that she did not receive the advisals contained therein.
Based on the pertinent statutory provisions, we find that an Immigration Judge may not order an alien removed in absentia when the Service mails the Notice to Appear to the last address it has on file for an alien, but the record reflects that the alien did not receive the Notice to Appear, and the notice of hearing it contains, and therefore has never been notified of the initiation of removal proceedings or the alien‘s address obligations under
ORDER: The appeal of the Immigration and Naturalization Service is dismissed.
In re G-Y-R-, Respondent
Board of Immigration Appeals
Decided October 19, 2001
23 I&N Dec. 181 (BIA 2001)
Philemina McNeill Jones, Board Member, in which Patricia A. Cole, Bоard Member, joined
I find problems in both the majority‘s interpretation and its implementation of the notice provisions in the Immigration and Nationality Act. For the reasons set forth below, I would sustain the Immigration and Naturalization Service‘s appeal and remand proceedings to the Immigration Judge for the entry of an in absentia order of removal.
According to the majority,
In removal proceedings under section 240, written notice (in this section referred to as a “notice to appear“) shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien‘s counsel of record, if any) . . . .
If we accept the majority‘s reading of
Under the majority‘s reading of the statute, the Service would be ill-advised to rely on the regular mail to initiate proceedings. If the Service uses regular mail, it conveys virtual control over the initiation of proceedings to the alien. To avoid a removal hearing, the alien need only ignore the Notice to Appear when it comes in the mail and, should it ever become necessary, simply deny that it was ever received at his or her address. Alternatively, the alien can simply change his or her residence and/or not report an address change to the Service, knowing that he or she is untraceablе for purposes of receiving the Notice to Appear. As the majority has pointed out, few consequences attach for failing to report address changes to the Service and an alien who wishes to delay or even elude proceedings can easily do so. I find it completely incongruous to conclude that Congress intended both to permit and to eviscerate the use of regular mail to initiate removal proceedings.
Moreover, if regular mail is ineffectual, the statutory notice provisions become unwieldy. The majority strains to interpret other provisions that presume regular mail will suffice. In particular,
The majority‘s reading of this language creates a paradox: how can an alien “have provided” an address to the Immigration Court before he or she has been told to provide one? The only way the alien can provide an address to the Immigration Court prior to proceedings is by providing an address to the Service, with the Service in turn providing it to the Immigration Court via the Notice to Appear. The majority‘s post facto validation of the address on the Notice to Appear is a forced and impraсtical reading of the statute, especially when the language of
I find that the statute permits—even intends—that removal proceedings be initiated through the mailing of a Notice to Appear by regular mail. Once the Service mails the Notice to Appear to the “most recent address” provided by the alien, under
If the Service cannot rely on the last address provided by the alien, then the in absentia provisions of the Act are applicable only to those cases in which the alien shows up for the hearing or otherwise concedes receipt of the Notice to Appear. Narrowly applying the in absentia provisions to this class of cases undermines the very efficacy of those provisions. In fact, the majority here places the Service in the untenable position of relying on an address that, almost by definition, is not reliable. In the end, the Service will have no choice but to resort to certified mail, a requirement that Congress purposefully removed from the statute. See the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, § 304, 110 Stat. 3009-546, 3009-587.
Ultimately, the majority‘s decision undermines the enforceability of the Act‘s in absentia provisions. I find the majority‘s holding to be at odds with the plain language of the statute and incompatible with any effort to create an effective immigration court system.
Accordingly, I would sustain the Service‘s appeal.