Popa v. Holder

• Decision Date: 06 July 2009
• Docket Number: No. 05-76507.,05-76507.
• Parties: Talida Ioana POPA, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

571 F.3d 890

Talida Ioana POPA, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 05-76507.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 2009.

Filed July 6, 2009.

Jagdip Singh Sekhon, Sekhon & Sekhon, San Francisco, CA, for the petitioner.

Peter D. Keisler, Assistant Attorney General; Barry J. Pettinato; David C. Kully; Washington, District of Columbia, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079-804-545.

Before: MARY M. SCHROEDER, A. WALLACE TASHIMA, and CARLOS T. BEA, Circuit Judges.

BEA, Circuit Judge:

The sole issue in this appeal is whether the government is permitted to provide notice of removal proceedings to an alien using a two-step process: (1) sending a Notice to Appear in which the government states that the date and time of the hearing will be provided at a later time and (2) later sending notice of the hearing with the date and time of the hearing.

Talida Popa, a native and citizen of Romania, petitions for review of the Board of Immigration Appeals' ("BIA") decision affirming the Immigration Judge's ("IJ") order denying her motion to reopen removal proceedings following a removal hearing in absentia. Popa contends she did not receive proper notice of the time and place of the hearing because her Notice to Appear bore no time and place for the hearing; it stated Popa would be notified of the time and place in a separate and later writing. That later writing, which did contain the date, time, and place of the hearing, was sent to a post office box she no longer checked. We hold the government is permitted to use the two-step process. We deny Popa's petition.

I. Factual and Procedural Background

On July 29, 2002, Popa was lawfully admitted to the United States as an exchange visitor¹ authorized to remain in the U.S. until October 19, 2002. After entering the United States, Popa married Jason A. San Souci, a U.S. citizen.² On April 1, 2003, San Souci filed a Form I-130 — a "Petition for Alien Relative" — with the Bureau of U.S. Citizenship and Immigration Services ("USCIS") on behalf of Popa; that same day, Popa applied to USCIS to become a permanent resident based on the Form I-130. Popa and San Souci lived in Nevada and used a mail address: P.O. Box 971, Crystal Bay, Nevada.

In January 2004, San Souci informed Popa he had to travel to New Jersey to attend a child custody hearing regarding his son from a previous marriage. On January 26, 2004, without informing Popa, San Souci withdrew the Form I-130 petition; accordingly, on February 5, 2004, USCIS denied Popa's application for status as a permanent resident and sent notice of the denied application to Popa's Nevada P.O. box address. The same day, the government issued Popa a Notice to Appear ("NTA") charging her with removability for being present in the U.S. without a valid, unexpired visa to remain in the U.S. and for failing to maintain her exchange visitor status, pursuant to 8 U.S.C. §§ 1227(a)(1)(B) and 1227(a)(1)(C)(i). On February 9, 2004, Popa received the notice denying her application for status as a permanent resident and the NTA at her P.O. box address.

The NTA ordered Popa to appear before an immigration judge at a "[t]ime and date to be set by the U.S. Immigration Court," and provided Popa with the Immigration Court's address. Additionally, the NTA stated:

You are required to provide the [Immigration and Naturalization Service ("INS")], in writing, with your full mailing address and telephone number. You must notify the Immigration Court immediately by using Form EOIR-33 whenever you change your address or telephone number during the course of this proceeding. You will be provided with a copy of this form. Notices of hearing will be mailed to this address. If you do not submit Form EOIR-33 and do not otherwise provide an address at which you may be reached during proceedings, then the Government shall not be required to provide you with written notice of your hearing. If you fail to attend the hearing at the time and place designated on this notice, or any date and time later directed by the Immigration Court, a removal order may be made by the immigration judge in your absence, and you may be arrested and detained by the INS.

After Popa received the NTA, she contacted San Souci, who was still in New Jersey, and San Souci confirmed he withdrew the Form I-130 petition and was considering reconciling with his ex-wife.³ Popa moved in with her childhood friend, Voica Matis, who lived in Riverbank, California.⁴ Popa did not inform the Immigration Court of her address change.

On February 26, 2004, the Immigration Court mailed a hearing notice and a Form EOIR-33 to Popa at the same Nevada P.O. box address to which the government mailed and at which Popa received the NTA. The hearing notice stated that Popa's hearing was scheduled to take place at 9:30 a.m. on March 16, 2004, at USINS, 1351 Corporate, Reno, NV, 89502. However, Popa did not receive this hearing notice because she had moved from Nevada to California and had not checked the mail at her Nevada P.O. box, nor had she terminated her use of the Nevada P.O. box and arranged for her mail to be forwarded. See 39 C.F.R. § 111.4 (2008); http://pe. usps.gov/text/dmm300/507.htm.

On March 16, 2004, Popa failed to appear at her hearing before the Immigration Court. The IJ issued a decision ordering Popa removed in absentia.

In June 2004, Popa first met with an attorney to determine her immigration status. At this meeting, Popa learned of the March 16, 2004 hearing and the IJ's decision ordering her removed to Romania. On September 13, 2004, Popa timely filed a motion to reopen her removal proceeding and to rescind her in absentia removal order with the Immigration Court, contending she never received notice of her hearing. The IJ denied the motion.

Popa timely appealed to the BIA, which adopted and affirmed the IJ's decision, and dismissed Popa's appeal.⁵ Popa timely petitioned this court for review of the BIA's decision.

II. Standard of Review

When the BIA adopts the IJ's decision in its entirety citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), as here, this court reviews the IJ's decision. Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir.2005) (en banc). This court reviews claims of error in an IJ's denial of a motion to reopen for abuse of discretion. Chete Juarez v. Ashcroft, 376 F.3d 944, 947 (9th Cir.2004). An IJ "abuses his discretion when he acts arbitrarily, irrationally, or contrary to law." Id. (internal citation and quotation marks omitted). Further, this court reviews de novo claims of error in "determination[s] of purely legal questions regarding the requirements of the Immigration and Nationality Act." Singh v. INS, 213 F.3d 1050, 1052(9th Cir.2000).

III. Discussion

Pursuant to 8 U.S.C. § 1229(a), an alien in removal proceedings must receive written notice — a Notice to Appear — specifying, in relevant part: (1) 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" and the consequences of the failure to do so; and (2) the "time and place at which the proceedings will be held." 8 U.S.C. § 1229(a)(1)(F)(ii)-(iii), (G)(i). If there is a change in the time and place of such proceedings, the government must provide written notice to the alien of the change and the consequences of the failure to attend such proceedings. Id. § 1229(a)(2)(A). Written notice "shall be given in person to the alien," or, "if personal service is not practicable,⁶ through service by mail to the alien." Id. § 1229(a)(1).

Pursuant to 8 U.S.C. § 1229a(b)(5)(A), an "alien who, after written notice ... has been provided to the alien or the alien's counsel of record, does not attend a proceeding ... shall be ordered removed in absentia if the [government] establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable."⁷ Written notice is sufficient if "provided at the most recent address provided [by the alien]." Id. An order of removal entered in absentia may be rescinded "upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice" of the removal proceeding. Id. § 1229a(b)(5)(C)(ii); 8 C.F.R. § 1003.23(iii)(A)(2).

A. The Notice to Appear was not statutorily defective.

Popa contends the IJ erred by ordering her removed in absentia because she did not receive adequate notice of her removal proceeding. Popa contends the NTA, received on February 9, 2004, was statutorily defective because it failed to state the time and date of her hearing, and instead stated the hearing would take place at a time and date "to be set by the U.S. Immigration Court," in violation of 8 U.S.C. § 1229(a)(1)(G)(i). Additionally, Popa contends the NTA was defective because it failed to notify Popa she was required to notify the Immigration Court of a change in address, in violation of 8 U.S.C. § 1229(a)(1)(F)(ii).

1. The Notice to Appear did not violate § 1229(a)(1)(G)(I).

Although § 1229(a)(1)(G)(i) requires a notice to appear to "specify[ ]" the time and place at which the proceedings will be held, this court has never held that the NTA cannot state that the time and place of the proceedings will be set at a future time by the Immigration Court. This court silently has adopted the rule that the time and date of a removal proceeding can be sent after the first notice to appear.

In Dobrota v. INS, 311 F.3d 1206, 1208 (9th Cir.2002), Dobrota, a Romanian citizen, entered the U.S. as a nonimmigrant visitor with authorization to remain in the U.S. for six months. Rather than depart at the end of that time period, Dobrota remained in the U.S. Id. On July 28, 1995, the INS sent an "Order to Show Cause and Notice of Hearing"⁸ ("OSC") to Dobrota's address of record and to...