Nazarova v. I.N.S., No. 97-3261

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore MANION, ROVNER, and DIANE P. WOOD; DIANE P. WOOD; MANION
Citation171 F.3d 478
Decision Date19 March 1999
Docket NumberNo. 97-3261
PartiesNatalia NAZAROVA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

Page 478

171 F.3d 478
Natalia NAZAROVA, Petitioner,
v.
IMMIGRATION & NATURALIZATION SERVICE, Respondent.
No. 97-3261.
United States Court of Appeals,
Seventh Circuit.
Argued April 2, 1998.
Decided March 19, 1999.

Page 480

David Rubman, Susan Compernolle (argued), Rubman & Compernolle, Chicago, IL, for Petitioner.

Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, Brenda E. Ellison (argued), David V. Bernal, Department of Justice, Civil Division, Immigration Litigation, Washington DC, for Respondent.

Before MANION, ROVNER, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Natalia Nazarova entered this country from her native Ukraine. There is now a deportation order against her, entered in her absence because she was two hours late for her deportation hearing. The delay occurred because Nazarova's interpreter was late for the hearing, and Nazarova (who speaks only Russian) had chosen to wait for him rather than risk an incomprehensible proceeding before the Immigration Judge ("IJ"). If the INS were to prevail in its opposition to the petition before us, Nazarova would be deported without ever having received a meaningful opportunity to be heard. Because, on the unique facts present here, we believe that Nazarova's constitutional right to due process of law has been violated, we remand her case to the immigration authorities for further proceedings.

I

Nazarova entered the United States on February 15, 1993. Her entry papers permitted her to stay in this country until April 14, 1994. Shortly after her arrival, she filed an application for political asylum based on her fear of persecution as a Jew. On May 11, 1994, the INS denied that application and instituted deportation proceedings against her by serving her with an "Order To Show Cause and Notice of Hearing." (The date of this action suggests that Nazarova's application for asylum was filed prior to April 14, 1996, but we cannot find the precise date of filing in

Page 481

the record.) The order to show cause document was printed in English and Spanish. It showed the date of the deportation hearing as August 19, 1994, and it included two pages of information entitled "Notice of Rights and Consequences of Failing to Appear." One possible consequence of failing to appear, it warned, is deportation in absentia.

Because the order to show cause did not contain information about the availability of interpreters, and knowing that she would need one, Nazarova asked her former employer, Rita Aizenberg, to contact the office of the IJ on her behalf to inquire whether an interpreter would be available at the hearing. The person at the IJ to whom Aizenberg spoke assured her that the "court" would provide an interpreter for Nazarova. Relying on this information, Nazarova took no steps to find her own interpreter and attended the August 19 hearing alone.

When she arrived at the hearing, however, there was in fact no interpreter present. This hearing turned out to be a master calendar hearing, at which pending matters were either quickly dispatched or rescheduled. The IJ spoke to Nazarova in English. As she recounts it, she understood little to nothing of what transpired orally, but she did receive a new written notice of hearing with a later date, from which she gleaned that her hearing had been rescheduled for October 7, 1994 at 10 a.m. That notice, like the first, was printed only in English and Spanish; once again, it specified the potential consequences of failing to appear.

Given her experience at the master calendar hearing--one reminiscent of that of Richard Gere's character Jack Moore in the 1997 movie Red Corner--Nazarova made certain to hire an interpreter to accompany her to the merits hearing. When that date arrived, Nazarova set off to meet her interpreter in plenty of time for her 10:00 a.m. hearing. Unfortunately, he was not at his office. At that point Nazarova believed that she was on the horns of a dilemma: should she go to another hearing at which she understood nothing, and could convey nothing, or should she wait for the interpreter? She chose to wait, and wait she did for nearly two hours. When he arrived at last, the two proceeded immediately to the hearing room, arriving right around noon. There she discovered to her dismay that the IJ had already held her deportation hearing in her absence. He held that Nazarova had received notice of the hearing, that the INS had established her deportability, and that, by failing to appear, Nazarova had failed to establish her entitlement to relief from deportation. On that basis, the IJ deported her to Russia. (This was, of course, an embarrassing error for an IJ to make. Although Nazarova speaks Russian, she is Ukrainian, and any deportation order should have specified the Ukraine as her destination. For an American IJ to deport a Russian-speaking Ukrainian to Russia is the same as if a Ukrainian Immigration Judge were to deport an English-speaking American to England.)

Less than a week later, Nazarova submitted a handwritten motion to reopen, explaining her failure to appear at the specified hour as a consequence of her interpreter's late arrival. This motion was eventually denied. Several months later, Nazarova, this time through counsel, again moved to reopen her case. She again argued that her interpreter's lateness constituted an exceptional circumstance sufficient to justify her failure to appear, and she added the new complaint that the notice of hearing she received was inadequate because the consequences of a failure to appear, though recited in English and Spanish, were not made known to her in Russian. This motion, too, was denied. Finally, Nazarova pressed her inadequate notice claim before the Board of Immigration Appeals ("BIA"). That body also denied her relief, holding that Nazarova had received adequate notice of the consequences of failing to appear. This petition for review followed.

Page 482

II

The INS first challenges our jurisdiction to hear this petition. It correctly notes that § 242B(c)(4) of the Immigration and Nationality Act confines appellate judicial review of deportation orders entered in absentia "to the issues of the validity of the notice provided to the alien, to the reasons for the alien's not attending the proceeding, and to whether or not clear, convincing, and unequivocal evidence of deportability has been established." 8 U.S.C. § 1252b(c)(4). The INS believes that Nazarova has waived or conceded each of these potential grounds for appeal.

We find no jurisdictional bar to our review. While it is true that Nazarova has never challenged the evidence of deportability, her arguments before the IJ, before the BIA, and before this court have all addressed the adequacy of the notice she received and her reasons for not timely attending her deportation hearing. She has not therefore conceded each of the statutory grounds for appeal.

Furthermore, even if her arguments below were imprecise renditions of the arguments that will eventually win the day on appeal, that raises at most the specter of forfeiture, and forfeiture is not a jurisdictional bar. Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). This court retains the right, although not the obligation, to reach forfeited arguments, and it may choose to do so in the interests of justice. Massachusetts Bay Ins. Co. v. Vic Koenig Leasing, Inc., 136 F.3d 1116, 1122 (7th Cir.1998).

III

We review the denial of a motion to reopen a deportation order entered in absentia for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Nonetheless, whether an immigration proceeding violates due process is a purely legal issue, which we review de novo. Hassan v. INS, 110 F.3d 490, 493 (7th Cir.1997).

Section 242B of the Immigration and Nationality Act governs this case, which arose before the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, now in force. In deportation proceedings under section 242B, the alien must receive written notice of the time, date, and place of the proceedings; the consequences of a failure to appear for reasons other than the statutorily defined "exceptional circumstances"; and notification of the right to be represented by an attorney. 8 U.S.C. § 1252b(a)(2), (3). The printed notice must be in English and Spanish. § 1252b(a)(3)(A). If an alien fails to appear at the deportation hearing, she will be deported in absentia if the INS establishes that she received the statutorily required notice and that she is deportable. § 1252b(c)(1). Upon a motion to reopen, such a deportation order can be rescinded if the alien's failure to appear was due to "exceptional circumstances," defined as circumstances beyond the control of the alien "such as serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances." § 1252b(c)(3)(A), (f)(2). The deportation order may also be rescinded if the alien did not receive proper notice. § 1252b(c)(3)(B).

This statutory concern with notice has its genesis in the well-settled fact that aliens have due process rights in deportation hearings. See, e.g., The Japanese Immigrant Case, 189 U.S. 86, 101, 23 S.Ct. 611, 47 L.Ed. 721 (1903); Kaczmarczyk v. INS, 933 F.2d 588, 595 (7th Cir.1991). The Supreme Court has long made clear that due process requires notice reasonably calculated to provide actual notice of the proceedings and a meaningful opportunity to be heard. In City of West Covina v. Perkins, --- U.S. ----, 119 S.Ct. 678, 142 L.Ed.2d 636 (1999), the Court explained the notice requirement in these words:

Page 483

A primary purpose of the notice required by the Due Process Clause is to ensure that the opportunity for a hearing is meaningful. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ("Th[e] right to be heard...

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59 practice notes
  • Capric v. Ashcroft, No. 02-3172.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 23, 2004
    ...that Capric's alleged language problems were self-inflicted, we can provide no relief. Rusu, 296 F.3d at 324; but cf. Nazarova v. INS, 171 F.3d 478, 480-82 (7th Cir.1999) (vacating a deportation order entered in absentia on due process grounds when alien would not take the stand without the......
  • Ying Fong v. Ashcroft, No. 03 Civ. 7261(AKH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 30, 2004
    ...United States v. Perez-Valdera, 899 F.Supp. 181, 184 (S.D.N.Y.1995). The opportunity to be heard must be "meaningful," Nazarova v. INS, 171 F.3d 478, 482 (7th Cir.1999), that is, an "opportunity ... granted at a meaningful time and in a meaningful manner." Logan v. Zimmerman Brush Co., 455 ......
  • Hyung Seok Koh v. Graf, No. 11 C 02605
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • March 30, 2018
    ...questions, and false promises to an intellectually disabled suspect rendered a confession involuntary); cf. Nazarova v. I.N.S. , 171 F.3d 478, 484 (7th Cir. 1999) ("A non-English-speaking alien has a due process right to an interpreter at her deportation hearing because, absent an interpret......
  • United States v. Lopez-Collazo, No. 15-4312
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 1, 2016
    ...in the hearing and her due process right to a meaningful opportunity to be heard are essentially meaningless.” Nazarova v. INS , 171 F.3d 478, 484 (7th Cir. 1999) ; see Marincas v. Lewis , 92 F.3d 195, 204 (3d Cir. 1996) (“[A] competent translator” is critical “to ensure the fairness of pro......
  • Request a trial to view additional results
58 cases
  • Capric v. Ashcroft, No. 02-3172.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 23, 2004
    ...that Capric's alleged language problems were self-inflicted, we can provide no relief. Rusu, 296 F.3d at 324; but cf. Nazarova v. INS, 171 F.3d 478, 480-82 (7th Cir.1999) (vacating a deportation order entered in absentia on due process grounds when alien would not take the stand without the......
  • Ying Fong v. Ashcroft, No. 03 Civ. 7261(AKH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 30, 2004
    ...United States v. Perez-Valdera, 899 F.Supp. 181, 184 (S.D.N.Y.1995). The opportunity to be heard must be "meaningful," Nazarova v. INS, 171 F.3d 478, 482 (7th Cir.1999), that is, an "opportunity ... granted at a meaningful time and in a meaningful manner." Logan v. Zimmerman Brush Co., 455 ......
  • Hyung Seok Koh v. Graf, No. 11 C 02605
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • March 30, 2018
    ...questions, and false promises to an intellectually disabled suspect rendered a confession involuntary); cf. Nazarova v. I.N.S. , 171 F.3d 478, 484 (7th Cir. 1999) ("A non-English-speaking alien has a due process right to an interpreter at her deportation hearing because, absent an interpret......
  • United States v. Lopez-Collazo, No. 15-4312
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 1, 2016
    ...in the hearing and her due process right to a meaningful opportunity to be heard are essentially meaningless.” Nazarova v. INS , 171 F.3d 478, 484 (7th Cir. 1999) ; see Marincas v. Lewis , 92 F.3d 195, 204 (3d Cir. 1996) (“[A] competent translator” is critical “to ensure the fairness of pro......
  • Request a trial to view additional results
1 books & journal articles
  • Law, Fact, and the Threat of Reversal From Above
    • United States
    • American Politics Research Nbr. 42-2, March 2014
    • March 1, 2014
    ...Statutory review107 F.3d 882 Yes No115 F.3d 248 No Yes134 F.3d 125 No Yes140 F.3d 1085 No Yes156 F.3d 1010 Yes No168 F.3d 515 Yes Yes171 F.3d 478 No Yes193 F.3d 27 Yes Yes198 F.3d 139 No Yes198 F.3d 899 No Yes209 F.3d 760 No Yes222 F.3d 1030 Yes No234 F.3d 772 No Yes237 F.3d 683 No Yes250 F......

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