PEUGNET
(2) In interpreting the terms “routine” and “personal” service as used in
(3) For purposes of defining “routine” and “personal” service within the meaning of
(4) An alien‘s deportation hearing may not proceed in absentia where the Order to Show Cause is sent to the alien‘s address by regular mail and is not reserved by personal service as required by
The respondent, a native and citizen of Nicaragua, entered the United States without inspection on July 11, 1986. An Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) charging the respondent with deportability was issued on July 12, 1986, and was personally served on the respondent that same day. After the respondent conceded her deportability and submitted an application for relief from deportation, an immigration judge, on May 5, 1987, granted her motion for a change of venue from Harlingen, Texas, to Miami, Florida. Thereafter, the respondent failed to appear for a hearing scheduled for September 9, 1987, and the immigration judge administratively closed the case.1 On October 15, 1987, the Immigration and Naturalization Service requested that the respondent‘s case be calendared for a continued hearing. That same day, the Service also issued a new Order to Show Cause, charging the respondent with the same ground of deportability and listing the exact same factual allegations listed in the prior Order to Show Cause. The new Order to Show Cause was sent to the respondent by regular mail. On October 19, 1987, the immigration judge granted the Service‘s motion and scheduled the respondent‘s next hearing for December 3, 1987. The hearing was subsequently rescheduled, and the respondent was sent notice, by electronic mail to her last known address, of a hearing scheduled for January 14, 1988. As noted above, the respondent failed to appear for the scheduled hearing, which proceeded in absentia.
On appeal, the respondent, through counsel, asserts that she never
Section 242(b) of the Act,
If 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 proceeding, the special inquiry officer may proceed to a determination in like manner as if the alien were present.
A hearing in absentia is appropriate where the alien had notice of his hearing, had an opportunity to attend, and showed no reasonable cause for his failure to appear. Maldonado-Perez v. INS, 865 F.2d 328 (D.C. Cir. 1989); Matter of Patel, 19 I&N Dec. 260 (BIA 1985), aff‘d, 803 F.2d 804 (5th Cir. 1986); Matter of Marallag, 13 I&N Dec. 775 (BIA 1971); see also Matter of Haim, 19 I&N Dec. 641 (BIA 1988). Additionally, applications for benefits under the Act are properly denied as abandoned or for lack of prosecution when the alien fails to attend the hearing or otherwise pursue them. Reyes-Arias v. INS, 866 F.2d 500 (D.C. Cir. 1989) (asylum); Matter of Balibundi, 19 I&N Dec. 606 (BIA 1988) (asylum); Matter of Nafi, 19 I&N Dec. 430 (BIA 1987) (exclusion); Matter of Jaliawala, 14 I&N Dec. 664 (BIA 1974) (adjustment of status); Matter of Pearson, 13 I&N Dec. 152 (BIA 1969) (visa petition).
Our review of the record shows that notice of the January 14, 1988, hearing was mailed to the respondent‘s correct address. However, the immigration judge erred in proceeding with an in absentia hearing on that date, as the Order to Show Cause had not been properly served on the respondent.
The regulation at
Service of the order to show cause may be accomplished either by personal service or by routine service; however, when routine service is used and the respondent does not appear for hearing or acknowledge in writing that he has received the order to show cause, it shall be reserved by personal service.
As noted above, the October 15, 1987, Order to Show Cause was sent to the respondent by regular mail. Although
The terms “routine service” and “personal service” are defined in detail by the regulations at
However,
Given that
Accordingly, for purposes of defining “routine” and “personal”
(1) Delivery of a copy personally;
(2) Delivery of a copy at a person‘s dwelling house or usual place of abode by leaving it with some person of suitable age and discretion;
(3) Delivery of a copy at the office of an attorney or other person, including a corporation, by leaving it with a person in charge;
(4) Mailing a copy by certified or registered mail, return receipt requested, addressed to a person at his last known address.
Since the October 15, 1987, Order to Show Cause was sent by ordinary mail to the respondent‘s last known address, this constituted “routine” service under the interpretation of
The Board acknowledges that the Order to Show Cause issued on July 12, 1986, had been personally served on the respondent. However, this document was of no effect, as it had been superseded by the Order to Show Cause issued on October 15, 1987, as the Service has acknowledged on appeal. It is not clear why the new Order to Show Cause was issued, but the respondent has speculated that the superseding order may have been issued because it is unclear from a reading of the document whether the prior order was signed and issued by an authorized officer of the Service. See
As the October 15, 1987, Order to Show Cause was not properly served on the respondent, deportation proceedings would ordinarily be ordered terminated. In this case, however, it is clear from the respondent‘s appellate brief that counsel now has possession of the document. Since service on counsel constitutes service on the respondent, the Order to Show Cause need not be reserved on the respondent. See
ORDER: The January 21, 1988, decision of the immigration judge is vacated, and the record is remanded to the immigration judge for further proceedings consistent with the foregoing opinion, and for the entry of a new decision.