Dobrota v. INS: 9th Circuit Finds Failure to Serve Notice of Hearing on Attorney Violates Due Process

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

DOBROTA V. INS: 9TH CIRCUIT FINDS FAILURE TO SERVE NOTICE OF HEARING ON ATTORNEY VIOLATES DUE PROCESS
Immigrants' Rights Update, Vol. 16, No. 8, December 23, 2002

The U.S. Court of Appeals for the Ninth Circuit has ruled that the Board of Immigration Appeals violated due process by refusing to grant a motion to reopen an in absentia deportation order, in a case where neither the respondent nor his attorney received notice of the hearing. The decision is based in part on the fact that the Order to Show Cause initiating deportation proceedings was served on the respondent's attorney, and in part on ambiguities in the advisals contained in the OSC from which the respondent could reasonably conclude that notice of the hearing would be sent to his attorney.

The respondent in this case, a Mr. Dobrota, is a Romanian citizen who was admitted to the United States as a visitor in 1993 and subsequently applied for asylum. While the application was pending, Dobrota moved his residence from Garden Grove to Concord, California, without informing the Immigration and Naturalization Service. However, the attorney representing him in the asylum case continued to receive notices regarding the case. In 1994 the INS denied the asylum application, and in July 1995 the agency issued an OSC against Dobrota. The INS sent the OSC by certified mail both to the attorney and to the Garden Grove address that Dobrota had listed on the asylum application. Because he had moved, Dobrota did not receive the OSC, but his attorney did receive the copy mailed to him.

In Oct. 1995, the immigration court mailed a notice of a deportation hearing to the Garden Grove address, which was returned to the court with "attempted, unknown" stamped on the envelope by the Postal Service. The court did not mail the notice to Dobrota's attorney, apparently because he had not filed an EOIR-28 Notice of Appearance form with the court. When Dobrota failed to appear for the hearing, he was ordered deported in absentia. The INS then served notice of the deportation order on Dobrota's attorney.

Shortly after learning of the deportation order, Dobrota's attorney filed a motion to reopen on his behalf, together with an EOIR notice of appearance form. The immigration judge denied the motion by checking off all the boxes on a pre-printed summary decision form. On appeal, the BIA remanded the case to the IJ for further explanation of the decision. The IJ then issued a written decision, explaining his reasons for denying the motion. The IJ found that service of the notice on Dobrota's most recent address was proper, and that service of the notice on Dobrota's attorney was not required because the attorney had not filed a notice of appearance form with the immigration court. On appeal the BIA upheld this ruling and dismissed the appeal, and Dobrota then filed a petition for review with the court of appeals.

In making its ruling, the Ninth Circuit noted that "to comport with due process requirements, the notice afforded aliens about deportation proceedings must be reasonably calculated to reach them." Thus, due process does not require that a noncitizen have actual notice of the hearing, and generally mailing a notice of hearing to an individual's most recent address is sufficient.

The court held, however, that in this case there were several factors that could reasonably have led Dobrota to believe that by providing his attorney's name and address with the asylum application he had adequately ensured that his attorney would receive future notices. First, the OSC was mailed to Dobrota's attorney, and that was how Dobrota learned of it in the first place. Second, the OSC itself contains ambiguous advisals which state that "[a]ny notices will be mailed only to the last address provided by you. If you are represented, notice will be sent to your representative." Based on these circumstances, the court concluded that it was reasonable for Dobrota to understand that future notices would be sent to his attorney.

Concluding that the BIA's denial of the motion to reopen was arbitrary and contrary to due process standards, the court granted the petition for review and remanded the case.

Dobrota v. INS, No. 01-71266 (9th Cir. Dec. 6, 2002).