In re G----Y----R----
| Citation | 23 I&N Dec. 181 |
| Decision Date | 19 October 2001 |
| Docket Number | Interim Decision Number 3458 |
| Parties | In re G----Y----R----, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
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 for 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 section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a) (Supp. V 1999). The Service also asserts that section 265 of the Act, 8 U.S.C. § 1305 (1994), places an affirmative duty on the respondent to keep the Attorney General apprised of her whereabouts or face certain consequences under section 266 of the Act, 8 U.S.C. § 1306 (1994 & Supp. V 1999).
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 her removal hearing.
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 section 239(a)(1) of the Act.
This question can best be answered by a careful reading of the pertinent statutory provisions—specifically, sections 239(a) and (c) and 240(b)(5) of the Act, 8 U.S.C. §§ 1229(a) and (c) and 1229a(b)(5) (Supp. V 1999). We understand these interrelated provisions collectively to preclude the entry of an in absentia order of removal when the alien has not received the Notice to Appear and thus does not know of the particular address obligations associated with removal proceedings.
Removal proceedings are initiated when an alien is provided notice of proceedings through the service of a Notice to Appear. Section 239(a)(1) of the Act. The contents of the Notice to Appear are carefully prescribed in section 239(a)(1) of the Act, which provides as follows:
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) 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 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.
(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 proceedings: 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) [] of failure to provide address and telephone information pursuant to this subparagraph."
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 section 242B(a)(1) of the Act, 8 U.S.C. § 1252b(a)(1) (1994). In fact, notice was deemed sufficient if the alien could be charged with having received the certified mailing. See Matter of Grijalva, 21 I&N Dec. 27, 32 (BIA 1995) (). The certified mail requirement has been removed, and the statute now simply permits "service by mail" if personal service is "not practicable." Section 239(a)(1) of the Act.
However, if the alien does not actually receive the mailing, as is the 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)." Section 239(c) of the Act (emphasis added). Thus, in cases where the alien does not get the mailing, only the use of an address that satisfies section 239(a)(1)(F) of the Act will suffice for the initiation of 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...
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Velasquez-Escovar v. Holder, 10–73714.
...to the two statutory obligations until the government gives them notice of those obligations by serving the NTA. In re G–Y–R–, 23 I. & N. Dec. 181, 184–86 (BIA 2001) (en banc). In other words: no notice, no obligation.3 By that logic, even aliens who have been served an NTA cannot be held t......