BIA: In Absentia Removal Order May Not Be Entered Where the Record Reflects...Respondent Did Not Receive Mailed NTA

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

BIA: IN ABSENTIA REMOVAL ORDER MAY NOT BE ENTERED WHERE THE RECORD REFLECTS THAT RESPONDENT DID NOT RECEIVE MAILED NTA (MATTER OF G-Y-R-)
Immigrants' Rights Update, Vol. 15, No. 7, Nov. 16, 2001

The Board of Immigration Appeals has issued an en banc precedent decision upholding an immigration judge's order terminating removal proceedings in the case of a respondent who failed to appear at her removal hearing. The BIA dismissed the appeal of the Immigration and Naturalization Service, which contended that the IJ should have entered an in absentia order of removal. The BIA found that, where notice of a removal hearing was served by mail and the respondent failed to appear, an in absentia order may be entered only where the respondent received, or can be charged with receiving, a Notice to Appear (NTA) informing him or her of the obligation to provide the immigration court with a current address.

The respondent in this case is a Salvadoran national who entered the U.S. in March 1982 and two months later applied for asylum. In June 1991, she submitted an address report card to the INS to inform the agency of her current address. In 1997, the INS mailed her a notice for an asylum interview, but she failed to appear for the interview. The INS then sent the respondent, by certified mail addressed to her last known address, an NTA for a removal hearing scheduled for Sept. 30, 1997. The NTA was returned to the INS by the Postal Service as undeliverable.

When the respondent failed to appear at the Sept. 1997 removal hearing, the IJ offered to administratively close the case to allow the INS to serve the NTA again, but the INS insisted on proceeding with the case and argued that the IJ should enter an in absentia removal order. However, the IJ found that the record did not establish that the respondent had received the NTA or been informed of the removal proceedings and the obligation to keep the court informed of her current address. The IJ then terminated proceedings, and the INS appealed. The IJ's order was sent by certified mail to the respondent's last-known address and returned with the notation "Moved Left No Address."

On appeal, the INS contended that the IJ should have entered an in absentia order, asserting that because section 239(a) of the Immigration and Nationality Act authorizes service of the NTA by regular mail (where personal service is not practicable), the method of notice used in this case should be considered adequate to support an in absentia order. The INS also relied on INA section 265, which imposes a duty on all noncitizens to notify the INS of any change of address.

The BIA rejected these contentions, finding that a careful reading of all the relevant statutory provisions shows that an in absentia order cannot be entered where the record reflects that the respondent never received the NTA and was never informed of the address obligations associated with removal proceedings. Section 239(a)(1)(F) of the INA requires that NTAs contain certain information, including notice that the respondent must provide the attorney general with a current address and telephone number (if any) where he or she may be contacted regarding removal proceedings, notice that the respondent must notify the attorney general of any change of address, and notice of the consequences of failing to provide this information. A respondent must be properly served with an NTA in order for these address obligations to be established and for the IJ to be authorized to proceed in absentia. While the statute allows for service of the NTA by regular mail, it also specifically provides that "[s]ervice by mail . . . 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)." INA § 239(c) (emphasis supplied in BIA decision). Similarly, the statute authorizes the IJ to enter an in absentia order if a respondent fails to appear for a removal hearing after having been provided written notice, and such notice is considered sufficient "if provided at the most recent address provided under section 239(a)(1)(F)." INA § 240(b)(5)(A) (emphasis supplied in BIA decision).

Based on these provisions, the BIA found that "in cases where the hearing notice is sent by mail, the entry of an in absentia order is authorized when the alien has been given written notice of the removal hearing 'at the most recent address provided under section 239(a)(1)(F)'" (quoting INA § 240(b)(5)). The BIA concluded that "an address can be a section 239(a)(1)(F) address only if the alien has first been informed of the particular statutory address obligations associated with removal proceedings and of the consequences of failing to provide a current address" (emphasis in original). The BIA noted that in some cases a respondent can be charged with having received mailed notice, as where there is evidence that the notice reached a respondent's household. In this case, however, since the record shows that the respondent was never given notice of the address obligations, there was no section 239(a)(1)(F) address that would justify entering an in absentia order based on mailed notice.

The BIA rejected the INS's contention that the registration requirements of INA section 265(a), which impose a duty on noncitizens to report address changes to the attorney general, allow for entry of an in absentia order after mailed service of an NTA to the last address reported to the INS. While the INA imposes certain consequences for failing to comply with section 265(a), including a possible misdemeanor conviction, it does not include the entry of an in absentia removal order as one of these consequences. The BIA therefore upheld the IJ's termination of proceedings and dismissed the appeal.

Matter of G-Y-R-, 23 I. & N. Dec. 181, Int. Dec. #3458 (BIA Oct. 19, 2001).