Dobrota v. I.N.S.

• Decision Date: 06 December 2002
• Docket Number: No. 01-71266.,01-71266.
• Citation: 311 F.3d 1206
• Parties: Aurelian DOBROTA, Petitioner, v. IIMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

311 F.3d 1206

Aurelian DOBROTA, Petitioner, v. IIMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 01-71266.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 2002.

Filed December 6, 2002.

John R. Alcorn, Irvine, CA, for the petitioner-appellant.

Edward C. Durant, Assistant United States Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for the respondent-appellee.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A70-664-059.

Before: WARDLAW and BERZON, Circuit Judges, and ISHII, District Judge.^*

BERZON, Circuit Judge.

Aurelian Dobrota petitions for review of the Board of Immigration Appeals' denial of his motion to reopen deportation proceedings after he was ordered deported in absentia pursuant to 8 U.S.C. § 1252b(c) (1995). He asserts that because neither he nor his attorney received notice of his deportation hearing, his deportation violated the statute and due process. We have jurisdiction over this matter pursuant to 8 U.S.C. § 1005a (1996),¹ and grant Mr. Dobrota's petition for review.

BACKGROUND

Aurelian Dobrota, a Romanian citizen, was admitted to the United States on or around January 5, 1993 as a "nonimmigrant visitor for pleasure with authorization to remain in the United States for a temporary period not to exceed July 4, 1993." Mr. Dobrota did not depart by July 4, 1993, however, but instead remained in the United States and filed an application for asylum. At some point during his asylum proceedings Mr. Dobrota hired attorney John Alcorn to represent him. In November 1993, Mr. Alcorn filed Form G-28 "Entry of Attorney" with the INS Asylum Office, stating that he now represented Mr. Dobrota.

Mr. Dobrota's asylum application was denied by the INS on April 28, 1994. Notice of this denial was sent to Mr. Dobrota's address of record, 13331 Adland Street, Garden Grove, California ("the Adland Street address") and also to Mr. Alcorn's office. The notice of denial instructed Mr. Dobrota that "[y]ou are directed to report any changes of address to the office having jurisdiction over your place of residence." In January 1995, Mr. Dobrota and his family moved to Concord, California, apparently without notifying the INS of their address change. Mr. Alcorn continued to serve as Mr. Dobrota's representative, however, and was recorded in the INS system as such.

On July 28, 1995, the INS issued a five-page "Order to Show Cause and Notice of Hearing" ("OSC"), which apprised Mr. Dobrota that he was subject to deportation because he had remained in the United States beyond the time permitted him at entry. On its third page the OSC stated that a hearing date and location would be determined and notice of these details would be mailed to "the address provided by the respondent." The fourth page stated:

You are required by law to provide immediately in writing an address (and telephone number, if any) where you can be contacted. You are required to provide written notice, within five (5) days, of any change in your address or telephone number to the office of the Immigration Judge listed in this notice. Any notices will be mailed only to the last address provided by you. If you are represented, notice will be sent to your representative.

At the top of the last page, the OSC further advised that "[y]ou must report any changes of your address or telephone number in writing" to the Immigration Judge's office address listed on the OSC. The OSC was sent to Mr. Alcorn's office and served on the Adland Street address by certified mail, return receipt requested. At the Adland Street address an individual unknown to Mr. Dobrota signed for receipt of the OSC.

On October 7, 1995, the Office of the Immigration Judge ("OIJ") issued a "Notice of Hearing," stating the time, date, and location of Mr. Dobrota's deportation hearing. This notice was sent only to the Adland Street address, not to Mr. Alcorn's office, and was returned to the INS on October 17, with "attempted, unknown" stamped on the envelope. Because Mr. Dobrota no longer resided at Adland Street and his attorney did not receive the "Notice of Hearing," neither was aware of the need to show up and neither did show up to Mr. Dobrota's deportation hearing on November 12, 1995. Finding no reasonable cause for Mr. Dobrota's absence, an Immigration Judge ("IJ") conducted the hearing in absentia and ordered Mr. Dobrota deported. Mr. Alcorn's office received a letter from the INS on August 8, 1997 stating that Mr. Dobrota had been found deportable and detailing arrangements for Mr. Dobrota's compelled departure to Romania.

On August 22, 1997, Mr. Dobrota moved to reopen his deportation proceedings. Three days thereafter, Mr. Alcorn filed Form EOIR-27, "Notice of Entry of Appearance of Attorney or Representative Before the Office of the Immigration Judge," with the Executive Office for Immigration Review ("EOIR"). On September 17, 1997, the IJ denied the motion to reopen by checking off reasons on a pre-printed summary decision form.² Mr. Dobrota appealed to the BIA.

In view of the IJ's "incomplete and insufficient" decision, the BIA remanded the case to the IJ for further explanation of her decision. On December 16, 1999, the IJ issued a two-page decision explaining that she had denied Mr. Dobrota relief from deportation because the notice of the hearing had been sent to Mr. Dobrota's address of record, the Adland Street address. Moreover, the IJ noted that "[t]he respondent has not explain[ed] how he could have received the OSC and not the notice of the hearing when they were sent to the same place. Since notice was sent to the most recent address provided by the respondent, notice is considered sufficient under the law." As to Mr. Dobrota's argument that Mr. Alcorn, as his attorney of record, had not received the notice of hearing, the IJ stated: "There is no evidence of counsel's appearance before the court when the notice was sent. Therefore, counsel was not entitled to receive a copy of the notice."

Mr. Dobrota appealed the IJ's new decision to the BIA. On June 25, 2001 the BIA dismissed his appeal, finding that the IJ had properly denied the motion to re-open. The BIA noted:

Proof of actual service or receipt of notice by the respondent is not required to effect service.... The record indicates that the notice of the November 21, 1995 hearing was sent to the respondent on October 7, 1995, by certified mail to the address of record for the respondent at that time. We therefore conclude that the respondent received adequate notice of his hearing.

The BIA held, moreover, that Mr. Dobrota's counsel was not entitled to notice of the hearing because he had not executed the appropriate form to appear before the OIJ until nearly two years after the hearing notice had been mailed. In the absence of this form, "service of the hearing notice on the respondent's counsel would have been inappropriate." Mr. Dobrota petitioned this court for review of the BIA's decision.

DISCUSSION

A. Due Process and Notice of Deportation Proceedings

Aliens facing deportation are entitled to due process under the Fifth Amendment to the United States Constitution, encompassing a full and fair hearing and notice of that hearing. Farhoud v. INS, 122 F.3d 794, 796 (9th Cir.1997). To comport with due process requirements, the notice afforded aliens about deportation proceedings must be reasonably calculated to reach them. Id. (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 318, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).

The applicable³ statutory requirements for notice of deportation hearings are codified at Section 242B of the Immigration and Nationality Act of 1952, Pub.L. 101-649, 104 Stat. 5061 (1952) (codified as amended at 8 U.S.C. § 1252b (1995)) (repealed 1996). Subsection 242B(a) specifies what OSCs shall contain and provides that "written notice (in this section referred to as an `order to show cause') shall be given in person to the alien (or, if personal service is not practicable, such notice shall be given by certified mail to the alien or the alien's counsel of record, if any)." 8 U.S.C. § 1252b(a)(1) (1995). Section 242B(a)(1)(F) further states that, among other things, the OSC must inform the alien of "[t]he 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 1252" and "[t]he requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien's address or telephone number."

The statutory requirements for notices of hearing track the OSC requirements almost exactly: "[W]ritten notice shall be given in person to the alien (or, if personal service is not practicable, such notice shall be given by certified mail to the alien or the alien's counsel of record, if any), in the order to show cause or otherwise...." Id. at (a)(2). However, the paragraph discussing requirements for notices of hearing adds that "[i]n the case of an alien not in detention, a written notice shall not be required under this paragraph if the alien has failed to provide the address required under subsection (a)(1)(F) of this section."

Section 242B also mandates consequences for an alien who fails to appear at his or her deportation hearing:

(1) In general

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 section 1252(b)(1) of this title in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is deportable. The written notice by the Attorney...