Fuentes-Argueta v. Immigration & Naturalization Service
Docket: No. 356, Docket 96-4001
Court: Court of Appeals for the Second Circuit; December 3, 1996; Federal Appellate Court
The petitioner, Nery Esperanza Fuentes-Argueta, a citizen of El Salvador, was arrested for allegedly entering the U.S. without inspection. The Immigration Judge (IJ) scheduled a deportation hearing for February 9, 1993, and sent notice to her address in Jamaica, New York, via certified mail. Although delivery was attempted twice and a notification was left at the post office, the notice was returned as 'unclaimed' because Fuentes did not sign for it or claim it. Consequently, she did not attend the hearing, leading the IJ to issue an in absentia deportation order.
Fuentes contends that she did not receive adequate notice as required under 8 U.S.C. § 242B of the Immigration and Nationality Act and the Due Process Clause of the Fifth Amendment, arguing that the IJ improperly entered the deportation order. She also asserts that the IJ's failure to recognize her attorney, Bruno Joseph Bembi, as counsel of record violated her right to legal representation. The Board of Immigration Appeals (BIA) has established that certified mail sent to an alien's last known address is sufficient notice, and the return of such mail as 'unclaimed' does not invalidate the notice unless evidence shows improper delivery attempts. The BIA found no abuse of discretion by the IJ and concluded that Fuentes did not provide sufficient evidence to rebut the presumption of adequate notice. Furthermore, her claim regarding denial of counsel was deemed without merit.
Background information includes Fuentes's arrest on August 24, 1992, for crossing the border from Mexico without inspection, and the subsequent order to show cause regarding her deportation. Fuentes's attorney informed the Immigration and Naturalization Service (INS) of her address change, but the IJ noted that a formal motion for a change of venue had not been submitted. Fuentes received a notice sent on October 14, 1992, about her deportation hearing scheduled for November 17, 1992, which she failed to attend.
The Immigration Judge (IJ) rescheduled the petitioner Fuentes’ deportation hearing to February 9, 1993, following a request from counsel for the Immigration and Naturalization Service (INS). On November 18, 1992, the IJ sent a Notice of Hearing via certified mail to Fuentes, which, according to postal records, was not successfully delivered after two attempts, resulting in the notice being returned as 'unclaimed.' Fuentes did not appear for the hearing, leading the IJ to issue an order of deportation in absentia. In August 1993, Bembi filed a notice of appearance as Fuentes' counsel and sought to reopen her deportation proceedings, which the IJ denied on October 8, 1993, without an appeal from Fuentes. On September 9, 1994, Fuentes moved again to reopen her case, presenting new evidence, including postal service return receipts and an affidavit claiming she was unaware of the hearing. The IJ denied this motion, stating that mailing the notice to Fuentes’ last known address fulfilled legal notice requirements. The Board of Immigration Appeals (BIA) affirmed the IJ’s decision, referencing the case In re Grijalva, which established a presumption of proper delivery by postal service, even if the mail was returned 'unclaimed.' The BIA found Fuentes did not provide sufficient evidence to counter this presumption, thus rejecting her inadequate notice claim. Fuentes subsequently petitioned the court for review of the BIA’s decision. The court has jurisdiction under 8 U.S.C. § 1105a(a) and reviews BIA decisions for arbitrariness, capriciousness, or abuse of discretion, while deferring to the BIA’s interpretation of statutes unless it contradicts Congressional intent.
Insufficient notice under the Immigration and Nationality Act (INA) is addressed through two key provisions: 8 U.S.C. 1252(b) and 8 U.S.C. 1252b. Before 1990, Section 242(b) allowed immigration judges (IJs) to issue in absentia deportation orders if an alien was given a reasonable opportunity to attend but failed to do so. This section required the Attorney General to create regulations ensuring aliens received reasonable notice of the charges and the proceedings. However, in 1990, Congress added Section 242B, which imposed stricter requirements for in absentia deportation orders and required clear, convincing evidence of deportability.
Section 242B demands enhanced notice procedures, stipulating that aliens must be informed of hearing details either in person or via certified mail. If an alien fails to appear, the Immigration and Naturalization Service (INS) must demonstrate that the required notice was provided before an in absentia order can be issued. The written notice is deemed sufficient if sent to the most recent address provided by the alien. Additionally, Section 242B allows for the reopening of deportation proceedings if the alien did not receive the mandated notice.
The petitioner, Fuentes, argues that the notice requirements of Section 242B should apply to her February 9 deportation hearing. She highlights that the language in Section 242B(a)(2) for deportation notices mirrors that of Section 242B(a)(1) for orders to show cause, and cites Board of Immigration Appeals (BIA) precedent asserting that orders to show cause require proof of actual receipt by the alien. Thus, Fuentes contends that the same standard should apply to notices of deportation proceedings.
The Immigration Judge (IJ) provided adequate notice to Fuentes regarding her second deportation hearing, satisfying the notice requirements of 8 U.S.C. § 1252b (242B). The Board of Immigration Appeals (BIA) interprets 242B to require that notice be conveyed either in person or by certified mail to the alien's last known address, regardless of actual receipt. There is no obligation for the certified mail return receipt to be signed by the alien or anyone at the address to validate service; proof of attempted delivery establishes a presumption of adequate notice, which can only be rebutted by substantial evidence demonstrating improper delivery or failure to provide a suitable address. The BIA distinguishes between notices of deportation proceedings and orders to show cause, specifically noting that 242B(c)(1) allows for written notice to be sufficient if sent to the most recent address provided by the alien. The BIA’s interpretation, supported by the Grijalva decision, indicates that a notice returned unclaimed does not invalidate its effectiveness. Fuentes failed to provide sufficient evidence to counter this presumption; her affidavit did not claim that the postal service did not attempt delivery, merely stating she was unaware of the hearing. Consequently, the BIA upheld the IJ's decision to deny Fuentes's motion to reopen her deportation proceedings.
The petitioner contends that the Board's interpretation of 242B, which permits in absentia deportation when a notice of deportation proceedings is returned 'unclaimed,' infringes on the Due Process Clause of the Fifth Amendment. The argument lacks merit, as certified mail is generally deemed a constitutionally sufficient method of notification, supported by case law affirming that first-class mail also meets due process requirements. The Supreme Court's decision in *Mullane* establishes that due process necessitates notice that reasonably informs affected parties of legal actions, without requiring actual receipt. Relevant cases demonstrate that a returned notice does not inherently indicate insufficient notification. The existence of attempted delivery through certified mail supports a presumption of adequate notice, which the petitioner may challenge.
Additionally, the petitioner asserts a violation of her right to counsel, claiming the Immigration Judge (IJ) did not recognize Bembi as her attorney prior to his formal notice of appearance in August 1993 and failed to inform him of a February 9, 1993, deportation hearing. While the Due Process Clause and the Immigration and Nationality Act guarantee an alien's right to counsel at their own expense, the IJ correctly informed Bembi in October 1992 that he would not be recognized until a formal notice was filed, which Bembi delayed for nearly a year. Thus, the IJ's actions in not acknowledging Bembi as counsel and not notifying him of the hearing were appropriate.
No abuse of discretion was found by the BIA in affirming the IJ’s denial of the petitioner’s motion to reopen her deportation proceedings, nor was there any violation of the petitioner’s due process rights or denial of her right to counsel. The BIA's order is affirmed, and the petition for review is denied. An 'order to show cause' must notify an alien of the nature of the proceedings and the charges against them, as outlined in 8 U.S.C. 1252b(a)(1) and 8 C.F.R. 242.1(b). In this case, Fuentes was served with such an order upon her arrest in Texas. The BIA has established that certified mail service of the notice requires a signed receipt for effective service, a rule that has been extended to orders to show cause. Fuentes contended that the BIA should have applied the notice standards from section 242(b) when reviewing the IJ's decision, arguing that her lack of notice constituted 'reasonable cause' for her absence at the hearing. However, it was determined that section 242(b) allows for first-class mail as a valid means of notification, which does not impose stricter notice requirements than those mandated by the Constitution. Therefore, the notice Fuentes received was sufficient, and her claim of lack of notice did not establish 'reasonable cause' under section 242(b).
