Hamazaspyan v. Holder
| Decision Date | 21 December 2009 |
| Docket Number | No. 05-72267.,05-72267. |
| Citation | 590 F.3d 744 |
| Parties | Edvin HAMAZASPYAN; Karine Vladimir Karapetian; Georgi Agamelian, Petitioners, v. Eric H. HOLDER Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ronald E. LeFevre, Office of the District Counsel, San Francisco, CA, John J.W. Inkeles, Esquire, Trial Attorney, M. Jocelyn Lopez Wright, U.S. Department of Justice, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A095-665-745.
Before: MARY M. SCHROEDER, A. WALLACE TASHIMA, and CARLOS T. BEA, Circuit Judges.
Edvin Hamazaspyan petitions for review of the Board of Immigration Appeals' ("BIA") dismissal of his appeal from an immigration judge's ("IJ") denial of his motion to reopen an in absentia removal order. The IJ ordered Hamazaspyan's removal after he failed to appear at a hearing scheduled by the IJ to consider his removal from the United States. Hamazaspyan contends he did not receive notice of the time and place of the hearing and that it was error for the immigration court not to send the notice of the time and place of the hearing to his counsel of record. It is not contested the IJ did not send such notice to counsel. We hold the immigration court erred because it did not serve Hamazaspyan's counsel of record with a hearing notice. Therefore, we reverse the BIA's decision and grant Hamazaspyan's petition for review.
The Department of Homeland Security ("DHS") detained Hamazaspyan after he attempted to enter the United States with a valid foreign passport, but an altered, or counterfeit, visa. While Hamazaspyan was in custody, the government personally served him with a "notice to appear."1 On the same day, the immigration court personally served Hamazaspyan with a "hearing notice."2 The notice to appear and the hearing notice specified Hamazaspyan's right to an attorney, the consequences of failing to appear at the scheduled hearing—i.e., removal in absentia—and Hamazaspyan's duty to provide the immigration court with a correct address if his correct address was not listed on the hearing notice.
After Hamazaspyan received the notice to appear and the hearing notice in person, but before his scheduled hearing, Hamazaspyan retained counsel, who filed a notice of appearance with the immigration court.
Hamazaspyan and his counsel appeared at his first hearing. His counsel sought his release from detention upon a bond and moved to change the venue for his hearing from San Pedro to Los Angeles, because Hamazaspyan's grandparents lived in Los Angeles.
Hamazaspyan's counsel was successful. Two days later, DHS paroled Hamazaspyan. Prior to his parole, Hamazaspyan had completed, or had helped to complete, at least three forms that required him to provide an address where he could be reached. Each of the documents contained his grandparents' correct street address, but two of the documents did not contain an apartment number and the third document contained an incorrect apartment number.3
Following Hamazaspyan's parole, the San Pedro immigration court granted his motion for a change of venue and transferred the removal proceedings from San Pedro to the Los Angeles immigration court. The San Pedro immigration court sent the order granting the motion to Hamazaspyan's counsel of record. The order listed Hamazaspyan's address without an apartment number.
The Los Angeles immigration court then sent, by regular mail, a hearing notice to Hamazaspyan at the address it had on file; that address did not include an apartment number. Hamazaspyan never received the hearing notice; it was returned to the immigration court approximately eight days after the scheduled hearing date. The immigration court did not send the hearing notice to Hamazaspyan's counsel of record.
Hamazaspyan did not appear at his scheduled hearing before the immigration court. The immigration court ordered him removed in absentia, pursuant to 8 U.S.C. § 1229a(b)(5)(A).4 Notwithstanding the hearing notice was not sent to Hamazaspyan's counsel, the Los Angeles immigration court did send the removal order to Hamazaspyan's counsel of record. Counsel immediately telephoned Hamazaspyan, who denied having received the hearing notice. Hamazaspyan, his grandparents, and his counsel of record all submitted affidavits to the immigration court averring they had not received the hearing notice.
Hamazaspyan promptly and timely moved to reopen the in absentia removal order on grounds the hearing had been held without proper notice to him and without giving him an opportunity to present his case for asylum based on claimed persecution for political activity in Armenia. The IJ denied the motion on the grounds the immigration court sent notice to the address Hamazaspyan provided to the DHS, i.e., the address without the apartment number. Hamazaspyan then appealed the IJ's denial of the motion to reopen to the BIA, which adopted and affirmed the decision of the IJ without discussing whether the immigration court was required to serve Hamazaspyan's counsel of record. Hamazaspyan timely petitioned this court for review.
Hamazaspyan's removal order is a final order over which this court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). This court's review of a removal order entered in absentia is limited to (i) the validity of the notice provided to the alien, (ii) the reasons for the alien's absence from the proceeding, and (iii) whether or not the alien is removable. 8 U.S.C. § 1229a(b)(5)(D).
Manjiyani v. INS, 324 F.3d 1138, 1141 (9th Cir.2003) (citations omitted), vacated on other grounds, Manjiyani v. Ashcroft, 343 F.3d 1018(9th Cir.2003).
The notice requirements for immigration proceedings are set forth in 8 U.S.C. §§ 1229, 1229a. Section 1229 covers the requirements for notices to appear and hearing notices. For notices to appear, § 1229(a)(1) states as follows:
In removal proceedings under section 1229a of this title, 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) specifying the following:
. . .
(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 1229a of this title.
(ii) The 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
. . .
(G)(i) The time and place at which the proceedings will be held.
(ii) The consequences under section 1229a(b)(5) of this title of the failure, except under exceptional circumstances, to appear at such proceedings. . . .
Hearing notices are governed by § 1229(a)(2), which states:
(A) In general
In removal proceedings under section 1229a of this title, in the case of any change or postponement in the time and place of such proceedings, subject to subparagraph (B) a written notice 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) specifying—
(i) the new time or place of the proceedings, and
(ii) the consequences under section 1229a (b)(5) of this title of failing, except under exceptional circumstances, to attend such proceedings.
(B) Exception
In 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 paragraph (1)(F).
Section 1229(c) provides: "Service by mail under this section shall be sufficient if there is proof of attempted delivery to the last address provided by the alien in accordance with subsection (a)(1)(F) of this section."
Removal proceedings in absentia are governed by § 1229a(b)(5), which states:
(A) Any alien who, after written notice required under paragraph (1) or (2) of section 1229(a) of this title 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 1229(a)(1)(F) of this title.
(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 1229(a)(1)(F) of this title.
(C) Rescission of order
Such an order may be rescinded only—
(i) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (e)(1) of this section), or
(ii) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of section 1229(a) of this title or the alien demonstrates that the alien was in Federal or State...
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