Perez-Alevante v. Atty Gen USA ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
9-19-2006
Perez-Alevante v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4230
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 05-4230
__________
HUGO EDUARDO PEREZ-ALEVANTE,
Petitioner,
vs.
ALBERTO GONZALES,
Attorney General of the United States,
Respondent.
__________
On Petition for Review of an Order of the
Board of Immigration Appeals
U.S. Department of Justice, Executive Office for Immigration Review
(BIA No. A36-821-800)
I.J. Henry S. Dogin
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 15, 2006
___________
Before: SLOVITER, WEIS and GARTH, Circuit Judges
(Filed: September 19, 2006)
__________
OPINION
__________
1
Garth, Circuit Judge:
Hugo Eduardo Perez-Alevante petitions for review of a final order entered by the
Board of Immigration Appeals (“BIA”) on August 16, 2005, affirming an immigration
judge’s denial of his motion to reopen his removal proceedings. Administrative Record
(“A.R.”) 2. For the reasons stated below, we will grant the petition.
I
Perez-Alevante was born in the Dominican Republic and admitted into the United
States as a permanent resident in 1979 at the age of nine. A.R. 77, ¶¶ 1-2. On March 29,
1996, he pled guilty in New Jersey Superior Court to one count of possession of a controlled
dangerous substance (cocaine) with intent to distribute within 1000 feet of a school, in
violation of N.J. Stat. Ann. § 2C:35-7. Id. at 95-97. He was sentenced to five years
confinement. Id. at 95. He successfully completed the “Intensive Supervision Program,” and
was released from incarceration in March 1997. Id. at 77, ¶ 4; 80.
As a result of this conviction, on December 3, 1997, the INS served Perez-Alevante
with a notice to appear, charging him with being removable pursuant to 8 U.S.C. §§
1227(a)(2)(A)(iii) (conviction of an aggravated felony as defined in 8 U.S.C. §
1101(a)(43)(B) (illicit trafficking in a controlled substance)) and 1227(a)(2)(B)(i) (conviction
of a controlled substance violation). A.R. 104-06. The first page of the notice shows that the
street address for Perez-Alevante, 508 Central Avenue in Harrison, New Jersey, was crossed
out and changed to 307 William Street. Id. at 104. The final page advised Perez-Alevante that
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he was immediately required to provide the INS in writing with his mailing address and that
it was his responsibility to notify the immigration court immediately any time that address
changed. Id. at 106. It further cautioned him that if he did not “provide an address at which
[he] may be reached during proceedings,” he would not be entitled to notice of his removal
hearing and a removal order could be entered at that hearing in his absence. Id.
Perez-Alevante acknowledged receiving this notice by signing it on December 3,
1997. Id. He retained counsel to represent him in matters relating to his possible deportation,
and on December 8, 1997, his counsel entered an appearance and filed a Form EOIR-28 with
the immigration court in Newark, New Jersey. Id. at 83.
On April 16, 2004, the District Counsel for Immigration and Customs Enforcement
(“ICE”) in Newark mailed Perez-Alevante a letter stating that his notice to appear was being
filed with the immigration court in Newark. Id. at 99. The letter was mailed to 307 William
Street. Id. The administrative record does not reveal if this letter was ever returned to ICE
by the United States Post Office, nor does it reveal whether the District Counsel ever mailed
a copy of this letter to Perez-Alevante’s attorney.
On April 19, 2004, the immigration court mailed Perez-Alevante a notice of hearing,
again using the 307 William Street address. The notice of hearing stated that Perez-
Alevante’s case had been scheduled for a hearing on May 18, 2004 at 9:00 a..m., and gave
the location in Newark. Id. at 94. As was the case with the April 16 th letter, the administrative
record does not disclose whether the notice was returned to the immigration court by the Post
3
Office, or whether a notice of hearing was sent to Perez-Alevante’s attorney.
Perez-Alevante failed to appear at the hearing and was ordered deported in absentia.
Id. at 93.
On October 20, 2004, Perez-Alevante filed a motion to reopen with the immigration
judge, asserting that (i) neither he nor his attorney received notice of the removal hearing;
(ii) he was eligible to apply for a discretionary waiver of deportation under 8 U.S.C. §
1182(c) pursuant to I.N.S. v. St. Cyr, 533 U.S. 289 (2001); and (iii) his case should be
reopened to permit him the opportunity to apply for such a waiver. Id. at 73-75. In an
affidavit submitted in support of his motion, Perez-Alevante attested that his address was 226
Belgrove Drive in Kearny, New Jersey, and that he had lived at that address since September
2000. Id. at 77, ¶ 1. He never asserts that he notified either the immigration court or ICE that
he had changed his address from the address stated on the notice to appear.
The immigration judge denied Perez-Alevante’s motion to reopen. Id. at 61-63. The
judge found that the notice of hearing was properly mailed to the most recent address Perez-
Alevante provided; that he had been personally served with the notice to appear and thus
actually informed both of his responsibility to keep the immigration court apprised of his
current address and the consequences of any failure to do so; and thus, that the in absentia
removal order was properly entered. Id.
Perez-Alevante appealed the immigration judge’s denial of his motion to reopen to
the BIA. Id. at 5-19, 32-36. He again raised the issue that neither he nor his attorney had
4
received notice of the May 18, 2004 hearing. Id. at 13-14. In addition, he again asserted that
he was eligible for a discretionary waiver of deportation. Id. at 15-19.
The BIA denied Perez-Alevante’s appeal. After adopting and affirming the decision
of the immigration judge, the BIA found that (i) Perez-Alevante was deemed to have
received notice of his hearing date because notice was sent to the most recent address he
provided and he was aware of his obligation to keep that address current; (ii) there were no
exceptional circumstances excusing his failure to appear; and (iii) the availability of new
relief in the form of a discretionary waiver of deportation did not obviate the fact that he
failed to appear at the May hearing and was ordered deported in absentia. Id. at 2-3.
This petition for review followed.
II
The government argues that this Court lacks jurisdiction over this matter. Section
1252(a)(1) of Title 8, as amended by The REAL ID Act of 2005 (“REAL ID Act”), gives this
Court jurisdiction to review final orders of removal. “Implicit in this jurisdictional grant is
the authority to review orders denying motions to reopen any such final order.” Patel v.
United States Att’y Gen., 334 F.3d 1259, 1261 (11th Cir. 2003) (citation omitted). However,
in cases involving criminal aliens, the REAL ID Act restricts the Court’s jurisdiction to
constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(C), (a)(2)(D).
Perez-Alevante does not contest that he is a criminal alien. While this classification
already limits the potential scope of our review, the government relies on Papageorgiou v.
5
Gonzales, 413 F.3d 356 (3d Cir. 2005), for the further proposition that in cases involving
criminal aliens, our jurisdiction extends only to “legitimate” constitutional claims and
questions of law. (Resp’t Br. 15-16.) The government misreads the holding in Papageorgiou.
In that case, we established that the REAL ID Act restored our jurisdiction over
constitutional claims and questions of law presented in a criminal alien’s petition for review
of his or her final removal order. Papageorgiou, 413 F.3d at 358. After explaining our
jurisdiction, we found the particular constitutional claim Papageorgiou asserted to be
meritless and denied the petition. Id. at 359. In other words, assertion of a constitutional
claim or question of law gives the Court the authority to resolve that claim on the merits; the
Court remains free, as always, to deny meritless claims.
III
Perez-Alevante contends that his lawyer was not provided with a notice of hearing and
that this omission constitutes an error of law requiring reversal of the denial of the motion
to reopen. The government concedes both that there is no indication in the Administrative
Record that Perez-Alevante’s attorney was ever sent a copy of the notice of hearing and that
the question of whether it was error not to provide such notice, is a question of law. (Resp’t
Br. 7, 22.)
We have jurisdiction to review this question of law. 8 U.S.C. § 1252(a)(2)(D). We
review the “BIA’s legal decisions de novo, but will afford Chevron deference to the BIA’s
reasonable interpretations of statutes which it is charged with administering.” Francois v.
6
Gonzales, 448 F.3d 645, 648 (3d Cir. 2006) (quotation and citation omitted).
The statute which governs the giving of a notice to appear at a removal hearing states
that the notice must “be given in person to the alien (or, if personal service is not practicable,
through service by mail to the alien or to the alien’s counsel of record, if any).” 8 U.S.C. §
1229(a)(1). Section 1229(a)(1)(F) of Title 8 requires that this notice specify:
(i) The requirement that the alien must immediately provide (or have provided)
the Attorney General with a written record of an address and telephone number
(if any) at which the alien may be contacted respecting proceedings under
section 1229a of this title.
(ii) 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.
(iii) The consequences under section 1229a(b)(5) of this title of failure to
provide address and telephone information pursuant to this subparagraph.
8 U.S.C. § 1229(a)(1)(F).
Turning to the referenced statute, then, subparagraph (A) of section 1229a(b)(5)
declares that if a notice to appear “has been provided to the alien or the alien’s counsel of
record,” but the alien fails to appear at the removal proceeding, he:
shall be ordered removed in absentia if the Service establishes by clear,
unequivocal, and convincing evidence that the written notice was so provided
and that the alien is removable . . . . The written notice by the Attorney General
shall be considered sufficient for purposes of this paragraph if provided at the
most recent address provided under section 1229(a)(1)(F) of this title.
8 U.S.C. § 1229a(b)(5)(A). Furthermore, subparagraph (B) cautions that “[n]o written notice
shall be required under subparagraph (A) if the alien has failed to provide the address
required under section 1229(a)(1)(F) of this title.” 8 U.S.C. § 1229a(b)(5)(B).
7
Finally, the accompanying regulations mandate that “[w]henever a person is required
by any of the provisions of this chapter to give or be given notice . . . such notice . . . shall
be given by or to . . . the attorney or representative of record, or the person himself if
unrepresented.” 8 C.F.R. § 292.5; 8 C.F.R. § 1292.5. (emphasis added).
Perez-Alevante relies on these regulations to argue that the immigration court should
have sent a hearing notice to his attorney of record. Indeed, the regulations make clear that
whenever an alien must be given notice, his counsel of record, if any, is also entitled to
notice. See 8 C.F.R. § 292.5; 8 C.F.R. § 1292.5. In response, the government invokes the
notice-eliminating subparagraph, 8 U.S.C. § 1229a(b)(5)(B), to maintain that because Perez-
Alevante, after moving in 2000, never provided notice of his change of address to the
immigration court as he was required to do, the immigration court was under no obligation
to provide any notice of the hearing; if there was no obligation to provide notice to Perez-
Alevante, there was no derivative obligation under the regulations to provide notice to his
counsel. The government further represents that insofar as there remained a notice
requirement here, it was fulfilled when the immigration court sent the notice of hearing to
the most recent address Perez-Alevante provided. See 8 U.S.C. § 1229a(b)(5)(A).
As a preliminary matter, we are not persuaded by the government’s contention that
8 U.S.C. § 1229a(b)(5)(B) eliminates entirely the government’s statutory obligation to give
notice of a removal hearing to an alien who has provided a mailing address, but has not
updated it. The more reasonable interpretation of this provision is that at a removal hearing
8
where the alien is not in attendance and has provided no contact information under 8 U.S.C.
§ 1229(a)(1)(F), then 8 U.S.C. § 1229a(b)(5)(B) absolves the government of the burden of
establishing by “clear, unequivocal, and convincing evidence that the written notice was . .
. provided.” 8 U.S.C. § 1229a(b)(5)(B). Indeed, where the alien has provided no address, it
is doubtful that notice could have been provided. However, the statute does not indicate an
intent to eliminate the giving of notice where the government is in possession of some
address for the alien. For example, 8 U.S.C. § 1229a(b)(5)(A) declares that written notice is
sufficient “if provided at the most recent address provided under section 1229(a)(1)(F) of this
title.” 8 U.S.C. § 1229a(b)(5)(A). To be sure, the fact that 8 U.S.C. § 1229a(b)(5)(A), by its
reference to the “most recent address,” particularizes which address it is indicating, whereas
8 U.S.C. § 1229a(b)(5)(B) refers only to “the address,” supports our view that 8 U.S.C. §
1229a(b)(5)(B) can only be invoked where the alien has provided absolutely no address.
We are satisfied that Perez-Alevante’s Fifth Amendment right to due process was
violated by the immigration court’s failure to provide notice to his attorney of record. A
recent Supreme Court case dealing in a different context but addressing the principle of
notice, Jones v. Flowers, 126 S. Ct. 1708 (2006), informs our decision. After Jones’ house
was sold in a tax sale, Jones brought suit, claiming his rights under the Fourteenth
Amendment Due Process Clause were violated because he had not received notice prior to
the sale. Id. at 712-13. The Arkansas Commissioner of State Lands had sent Jones notice by
certified mail in accordance with the applicable statute, but when the packet was returned
9
unopened and marked “unclaimed,” the Commissioner took no further action. Id.
The Court held that the state’s failure to take additional reasonable steps to provide
notice after learning that the statutorily-prescribed notice method had failed, violated due
process. Id. at 1713. Although Jones had failed to comply with a statutory obligation to keep
his address updated, the Court agreed that this failure did not result in forfeiture of his right
to be given constitutionally sufficient notice before the state could sell his property for
delinquent taxes. Id. at 1717. Similarly, the fact that Perez-Alevante did not comply with his
statutory responsibility to provide a current address did not necessarily mean that the
immigration court was entirely relieved of its obligation to provide him with notice that met
the requirements of the Due Process Clause. This is so, particularly where the regulations
provide for notice to an alien’s attorney and no such notice was given. See 8 C.F.R. § 292.5;
8 C.F.R. § 1292.5.
We, just as the Jones Court, are guided by the principle that “when notice is a person’s
due . . . [t]he means employed must be such as one desirous of actually informing the
absentee might reasonably adopt to accomplish it.” Id. at 1715 (citation and quotation
omitted). It is well-settled that aliens facing removal are entitled to due process. See e.g.,
Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). We believe that an immigration court
intent on actually informing an alien of his removal hearing and in possession of the contact
information for the alien’s counsel, would certainly take the reasonable step of mailing notice
to that counsel. This additional step requires de minimus effort by the government, and is
10
balanced against the significant interest an alien facing removal has in being able to continue
his professional and familial life in this country. See Sewak v. I.N.S., 900 F.2d 667, 671-72
(3d Cir. 1990) (“Though deportation is not technically a criminal proceeding, it visits a great
hardship on the individual and deprives him of the right to stay and live and work in this land
of freedom. Meticulous care must be exercised lest the procedure by which he is deprived
of that liberty not meet the essential standards of fairness.”). Although Jones found a due
process violation in the fact that the State took no additional steps to give notice after
becoming aware that its initial attempt had been unsuccessful, the immigration court here had
the contact information for Perez-Alevante’s counsel from the outset. Considering that “the
constitutionality of a particular procedure for notice is assessed ex ante,” Jones, 126 S. Ct.
at 1717, we have no difficulty in finding that the additional step of providing notice to Perez-
Alevante’s counsel, where the immigration court knew he was represented by counsel and
was in possession of that counsel’s contact information, was required by the Due Process
Clause.
We will grant the petition on the grounds of inadequate notice. Hence, we do not
address Perez-Alevante’s argument concerning a discretionary waiver of deportation. We
will remand to the BIA with directions that it remand to the immigration judge to consider
Perez-Alevante’s remaining arguments.
11