Peralta-Cabrera, Olg v. Mukasey, Michael ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2254
OLGER G. PERALTA-CABRERA,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
____________
ARGUED JUNE 6, 2007—DECIDED SEPTEMBER 7, 2007
____________
Before RIPPLE, EVANS, and WILLIAMS, Circuit Judges.
EVANS, Circuit Judge. This is the second time that
we are called to address Olger Peralta-Cabrera’s case, in
which he petitions for review of the Board of Immigration
Appeals’s (BIA) decision upholding the immigration
judge’s (IJ) denial of his motion to reopen. The material
facts are not disputed, and although we briefly discussed
them in a 2006 order, we recount them here for the sake
of clarity.
In November 1994, an IJ in Chicago ordered Peralta-
2 No. 06-2254
Cabrera deported1 in absentia to his home country of
Ecuador. Eight years later Peralta-Cabrera moved to
reopen his deportation hearing, claiming that he failed to
appear at the 1994 hearing because he never received a
notice of the hearing’s time or place. See 8 U.S.C.
§ 1252b(c)(3)(B) (1988). He asked the IJ to rescind his
in absentia deportation order and also moved to change
venue to the immigration court in Bloomington, Minne-
sota, where he and his family then resided. In a memoran-
dum and affidavit supporting his motion, Peralta-Cabrera
expounded upon his claim that he did not receive notice
of his 1994 deportation hearing.
Peralta-Cabrera began by explaining that he and a
traveling companion named Eloy Espinoza entered the
United States (at San Ysidro, California) in July 1994
“without inspection,” a euphemistic way of saying they
entered illegally. A few days later the duo ended up at
O’Hare International Airport in Chicago, Illinois, where
agents of the now-defunct Immigration and Naturalization
Service (INS) arrested the men for their illegal entry. See
8 U.S.C. § 1251(a)(1)(B) (1988). Upon their arrest,
Espinoza telephoned his brother-in-law who lived in
Chicago—Florentine Arias, a central player in this
story—and asked him to come to O’Hare and help him
1
When the Immigration and Naturalization Act (INA) was
amended in 1997 by the Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996 (IIRIRA), one of the many
changes made was the substitution of the term “deportation”
with “removal.” See Fernandez-Vargas v. Gonzales, 126 S. Ct.
2422, 2426 n.1 (2006) (citing Gerald L. Neuman, Habeas Corpus,
Executive Detention, and the Removal of Aliens, 98 Colum. L.
Rev. 961, 966 (1998)). As we discuss later, Peralta-Cabrera’s
case is governed by the pre-IIRIRA version of the INA; thus, we
will utilize the term “deportation” and its appropriate deriva-
tives. See id.; Ursachi v. INS, 296 F.3d 592, 594 (7th Cir. 2002).
No. 06-2254 3
and Peralta-Cabrera seek their release. While he was
detained awaiting Arias’s arrival, Peralta-Cabrera spoke
with an immigration agent regarding where he would live
while his deportation proceedings were pending. He
informed the agent that he had never before been to
Chicago, had no place in the city to live, and knew no
one in the city. Therefore, Peralta-Cabrera stated, he
would go with Espinoza to stay with Arias while the
proceedings played out.
Meanwhile, Peralta-Cabrera continued, Arias arrived
at O’Hare and spoke with immigration agents regarding
Peralta-Cabrera’s and Espinoza’s release. The agents
sought from Arias information regarding how the im-
migration authorities could reach the two men to provide
them with information regarding their upcoming deporta-
tion hearings; Arias responded that both men would stay
at his apartment in Chicago’s Wrigleyville neighbor-
hood—841 West Cornelia Street, Chicago, Illinois, 60657.
The agents with whom Arias spoke used that address
when completing a variety of administrative forms regard-
ing Peralta-Cabrera’s arrest and release; among these
forms was the agency’s Order to Show Cause, the docu-
ment upon which immigration authorities would rely to
obtain Peralta-Cabrera’s contact information so they
could, in turn, mail to him notice of the time and place of
his deportation hearing.
After the paper work was completed, Peralta-Cabrera
further recounted, an immigration agent reviewed the
forms with him and asked if his contact information—that
is, the Cornelia Street address provided by Arias—was
correct; Peralta-Cabrera responded that it was. The agent
then informed Peralta-Cabrera that in a few weeks
immigration authorities would mail to Arias’s address a
hearing notice that contained information regarding
the time and place of his upcoming deportation hearing.
4 No. 06-2254
Peralta-Cabrera was then released. He proceeded to take
up residence in Arias’s apartment on Cornelia Street, as
he said he would. However, he never received the hear-
ing notice, or, for that matter, any other document regard-
ing his deportation hearing.
Having received no word from immigration authorities,
Peralta-Cabrera stated that in late 1994 he packed up his
possessions and traded Wrigleyville for the Minneapolis-
St. Paul area in Minnesota. Time passed, and in 2002
Peralta-Cabrera’s employer submitted a petition for an
immigrant visa on his behalf. After the visa was granted,
Peralta-Cabrera applied to adjust his status to a perma-
nent resident. However, the INS denied Peralta-Cabrera’s
application, saying he was ineligible to adjust his status.
The INS cited unspecified information submitted with his
employer’s visa petition and equally unspecified “related
files.” Curious as to what would prevent him from adjust-
ing his status, Peralta-Cabrera obtained a copy of his
immigration file, which contained many documents that,
until that moment, he did not know existed. Specifically,
the file contained a photocopy of a hearing notice dated
August 10, 1994, stating that a deportation hearing be-
fore an IJ was scheduled for November 23, 1994. At-
tached to the notice were two documents. The first docu-
ment was a copy of a receipt for certified mail, showing
that the notice was mailed the same day that it was
issued and that it was addressed to the following
recipient: “Peralta-Cabrera, Olger Gonzalo, 841 West
Cornelia, Chicago, IL 60657.” Also attached to the notice
was a copy of an envelope bearing a stamp that
read: “RETURN TO SENDER—ATTEMPTED NOT
KNOWN,” and handwritten notes reading “UNK” (presum-
ably short for “unknown”) and “8/12/94.” The file also
contained the IJ’s decision of November 23, 1994, in which
he ordered Peralta-Cabrera deported in absentia; at-
tached to the decision was another photocopy of a receipt
No. 06-2254 5
for certified mail, showing that the decision was mailed
on the same day it was issued to the same address as
the hearing notice, and another photocopy of an envelope,
bearing both a postmark of November 23, 1994, and
another “ATTEMPTED NOT KNOWN” stamp.
Confused as to why the hearing notice was not de-
livered to him in Chicago when it was sent to the address
he provided to the immigration agents, Peralta-Cabrera
stated that he contacted Arthur Roxas, an attorney
with the U.S. Postal Service, to see if he could shed some
light on the matter. After Peralta-Cabrera described the
documents in his immigration file, Roxas informed him
that, under Postal Service regulations, mail addressed to
a person who does not reside at an address, but is merely
visiting the address, will not be delivered unless the mail
is addressed “in care of ” the individual whom he is visit-
ing. Roxas also provided Peralta-Cabrera with the Postal
Service internal regulations setting forth the policy. Armed
with this information, Peralta-Cabrera moved to reopen
his deportation proceedings on the basis that he never
received notice.
Although the IJ accepted Peralta-Cabrera’s version of
the facts, he nevertheless denied the motion to reopen,
reasoning that it was solely Peralta-Cabrera’s responsibil-
ity to specify that his mail needed to be addressed to him
“in care of ” Arias, and thus “he can be ‘charged’ with
receiving notice which was sent to the only address he
provided.” Peralta-Cabrera appealed to the BIA, which
upheld the denial of the motion to reopen. Like the IJ, the
BIA had no issue with the facts as presented by Peralta-
Cabrera but echoed the IJ’s determination that Peralta-
Cabrera was properly charged with receiving the notice.
Peralta-Cabrera then petitioned us to review the BIA’s
decision. While his petition was pending, however, Peralta-
Cabrera was deported back to Ecuador. We nevertheless
6 No. 06-2254
addressed the case, but instead of assessing the merits
of Peralta-Cabrera’s arguments we accepted the govern-
ment’s suggestion to remand the case to the BIA so it
could examine whether Peralta-Cabrera could be charged
with receiving notice of his deportation hearing under our
then-recently announced decision in Sabir v. Gonzales, 421
F.3d 456 (7th Cir. 2005). We accordingly ordered the
BIA to examine whether, under Sabir, Peralta-Cabrera
thwarted the Postal Service’s attempts to deliver the notice
and, if not, whether the motion to reopen should be
granted on the basis that he did not receive notice. See
Peralta-Cabrera v. Gonzales, 161 F. App’x 594, 595 (2006)
(unpublished opinion).
On remand, the BIA again upheld the IJ’s denial of
Peralta-Cabrera’s motion to reopen. The BIA first noted
that it lacked jurisdiction to address Peralta-Cabrera’s
case because his deportation constituted a withdrawal of
his motion to reopen. See In re G-N-C-, 22 I. & N. Dec. 281(B.I.A. 1998). However, this determination did not keep
the BIA from concluding that Peralta-Cabrera thwarted
service of his hearing notice by not informing the INS
agents at the time of his arrest that his mail needed to be
addressed to him “in care of ” Arias; as the BIA stated, “[i]t
was not the INS’ responsibility to guess that the addition
of those words might be necessary.” The BIA accordingly
dismissed Peralta-Cabrera’s appeal.
Which brings us to today, with Peralta-Cabrera again
petitioning us to review the BIA’s decision upholding the
IJ’s denial of his motion to reopen. Before we reach the
merits of Peralta-Cabrera’s arguments, however, the
BIA’s terse disavowal of jurisdiction requires us to ad-
dress a vital (and thorny) issue: whether Peralta-
Cabrera’s case remains justiciable in light of the fact that
he no longer is in the United States. This examination
first requires us to determine whether the Immigration
No. 06-2254 7
and Naturalization Act (INA) provides a basis for us to
exercise subject matter jurisdiction. Under the provisions
of the INA applicable to Peralta-Cabrera’s case, we
conclude that it does.
As we recounted earlier, the IJ entered its order of
deportation in November 1994. This, in turn, means that
his petition for review is governed by the INA as it existed
before it was amended in April 1997 by the Illegal Immi-
gration Reform and Immigrant Responsibility Act of 1996
(IIRIRA). See Pub. L. No. 104-208, § 309(a), (c)(1), 110
Stat. 3009-546, 3009-625 (1997) (stating that IIRIRA
generally does not apply to aliens “in exclusion or deporta-
tion proceedings” before effective date); Fernandez-Vargas
v. Gonzales, 126 S. Ct. 2422, 2432 (2006); Nwaokolo v. INS,
314 F.3d 303, 305-06 (7th Cir. 2002) (per curiam). The pre-
IIRIRA provisions of the INA deprived the federal courts
of appeals of jurisdiction to address any petition for review
when the petitioner had “departed from the United
States.” See 8 U.S.C. § 1105a(c) (1988); Sofinet v. INS, 188
F.3d 703, 708 (7th Cir. 1999); see also In re G- N- C-, 22
I. & N. Dec. at 288 (applying pre-IIRIRA version of INA to
determine lack of jurisdiction to address motion to reopen
1991 deportation proceedings). At first blush, then, it
appears that we lack jurisdiction to address Peralta-
Cabrera’s petition for review because of his deportation.
Not so; in fact, this is where things get interesting. Federal
appellate courts have interpreted the term “departure” to
mean only “legally executed departures”; thus, jurisdiction
over a petition for review is not removed if the petitioner’s
departure was due to unlawful government action. See
Joehar v. INS, 957 F.2d 887, 889-90 (D.C. Cir. 1992);
Zepeda-Melendez v. INS, 741 F.2d 285, 287 (9th Cir. 1984);
Juarez v. INS, 732 F.2d 58, 59-60 (6th Cir. 1984); see also
Marrero v. INS, 990 F.2d 772, 777 (3d Cir. 1993) (stating
court has jurisdiction when petitioner also presents
colorable due process claim). Our jurisdiction thus rests on
8 No. 06-2254
whether Peralta-Cabrera’s deportation was “legally exe-
cuted,” and, as we will see, it was not.
With exceptions not pertinent here, under the pre-
IIRIRA version of the INA an alien who served a petition
for review on the Attorney General and relevant immigra-
tion authorities automatically was granted a stay of
deportation pending the resolution of the petition. See 8
U.S.C. § 1105a(a)(3) (1988 & Supp. V 1993); Sofinet, 188
F.3d at 705 (noting that IIRIRA replaced provision grant-
ing automatic stay with provision requiring petitioner
affirmatively requesting stay). The record shows that
on November 19, 2004—ten days before he was deported—
Peralta-Cabrera served upon both the Attorney General
and correct immigration authorities his first petition
for review of the BIA’s decision upholding the IJ’s denial of
his motion to reopen. (This petition, as we have noted, led
us to remand the case to the BIA with instructions to
consider the case in light of Sabir.) The deportation order
entered against Peralta-Cabrera thus should have been
stayed pending the outcome of his petition for review, see
8 U.S.C. § 1105a(a)(3) (1988 & Supp. V 1993); Sofinet, 188
F.3d at 705, and yet, disturbingly, he was deported.
Because the government ran afoul of the applicable pre-
IIRIRA provisions of the INA by prematurely deporting
him, cf. Bejar v. Ashcroft, 324 F.3d 127, 132 (3d Cir. 2003),
we cannot say that Peralta-Cabrera’s departure was
“legally executed.” Thus, under the INA we have jurisdic-
tion over his petition for review, his deportation notwith-
standing. See Marrero, 990 F.2d at 777; Joehar, 957 F.2d
at 889; Zepeda-Melendez, 741 F.2d at 287.
Our discussion, unfortunately, does not end there;
although the INA gives us jurisdiction over Peralta-
Cabrera’s case, we nevertheless may not address his
petition for review if his deportation renders his case moot.
See Spencer v. Kemna, 523 U.S. 1, 7-8 (1998); A.M. v.
Butler, 360 F.3d 787, 790 (7th Cir. 2004) (“[A] federal court
No. 06-2254 9
at any stage of the proceedings must, on its own, dismiss
a case as moot when it cannot give the petitioner any
effective relief.”). A case is moot when the parties fail to
“continue to have a ‘personal stake in the outcome’ ” of the
legal action in question, see Spencer, 523 U.S. at 7 (quoting
Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78 (1990)),
meaning here that for his case to remain justiciable,
Peralta-Cabrera “must have suffered, or be threatened
with, an actual injury traceable to the [government] and
likely to be redressed by a favorable judicial decision,” see
Lewis, 494 U.S. at 477; A.M., 360 F.3d at 790. Because
Peralta-Cabrera is no longer subject to deportation (after
having already been deported) and is not detained by
the INS, his deportation thus must yield some collateral
consequences to present a live and cognizable issue. See
Tapia Garcia v. INS, 237 F.3d 1216, 1217 (10th Cir. 2001);
see also A.M., 360 F.3d at 790.
Under the INA’s current admissibility provisions, see
Fernandez-Vargas, 126 S. Ct. at 2432 n.11, collateral
consequences exist. Specifically, Peralta-Cabrera may not
seek readmission to the United State for five years from
the date he was deported. See 8 U.S.C. § 1182(a)(6)(B)
(2004); cf. 8 U.S.C. § 1182(a)(6)(B) (1988) (barring de-
ported aliens from seeking readmission for five years
unless they first obtain Attorney General’s permission);
Labojewski v. Gonzales, 407 F.3d 814, 822 n.5 (7th Cir.
2003); Tapia Garcia, 237 F.3d at 218. Peralta-Cabrera
likewise is hindered from adjusting his immigration
status, as he originally sought to do, until the five years
have expired or he obtains the Attorney General’s permis-
sion to apply early, which, we think, is extremely unlikely.
See Lopez-Flores v. Dep’t of Homeland Sec., 387 F.3d 773,
777 & n.4 (7th Cir. 2004) (citing 8 C.F.R. § 212.2(a)). These
consequences of Peralta-Cabrera’s deportation are con-
crete disadvantages imposed on him as a matter of law,
see Max-George v. Reno, 205 F.3d 194, 196 (5th Cir. 2000);
10 No. 06-2254
Gao v. Jenifer, 185 F.3d 548, 557 (6th Cir. 1999), and
which a favorable decision from us can begin to redress.
For instance, we can grant Peralta-Cabrera’s petition for
review and remand the case with instructions to reopen his
deportation hearings, which, in turn, would allow him the
opportunity to challenge his deportation, and potentially
the chance to seek readmission or adjustment of status.
Thus, despite his deportation, Peralta-Cabrera’s petition
for review presents a live case and controversy for us to
address. See Tapia Garcia, 237 F.3d at 218; see also A.M.,
360 F.3d at 790.
The justiciablility of Peralta-Cabrera’s appeal now
established, we move, finally, to the merits of his claim.
Peralta-Cabrera argues that the BIA incorrectly upheld
the IJ’s denial of his motion to reopen by erroneously
determining that he thwarted delivery of his hearing
notice solely by not stating that the notice needed to be
addressed to him “in care of ” Arias. Where, as here, the
BIA undertook an independent review of the record, we
review the BIA’s decision directly. See Korniejew v.
Ashcroft, 371 F.3d 377, 382 n.7 (7th Cir. 2004). We nor-
mally review a decision upholding the denial of a motion to
reopen for abuse of discretion, see Ursachi v. INS, 296
F.3d 592, 594 (7th Cir. 2002), but because the issue of
whether an alien received notice of his deportation hearing
implicates notions of due process, our examination is
de novo, Nazarova v. INS, 171 F.3d 478, 482 (7th Cir.
1999).
An alien seeking to challenge a deportation order entered
in absentia has but one option: to move to reopen the
hearing that resulted in the order. See 8 U.S.C.
§ 1252b(c)(3) (1988); In re Gonzalez-Lopez, 20 I. & N. Dec.
644, 645-46 (B.I.A. 1993). As pertinent here, the alien can
bring the motion at any time if he shows that he did not
appear at the deportation hearing because he failed to
receive proper notice of the hearing. See 8 U.S.C.
No. 06-2254 11
§ 1252b(c)(3)(B) (1988). That is not to say that an alien
can “make himself unreachable, and then later ask to
have his case reopened because he did not receive notice,”
Sabir, 421 F.3d at 459. He cannot. Rather, where the
evidence establishes that the alien “thwarted delivery” of
the notice, he can be charged with having received it. See
id.; Wijeratne v. INS, 961 F.2d 1344, 1347-48 (7th Cir.
1992); cf. 8 U.S.C. § 1252b(c)(2) (1988) (eliminating
notice requirement where alien fails to provide contact
information).
In addressing whether Peralta-Cabrera received notice
of his deportation hearing, the parties devote substan-
tial portions of their briefs discussing whether the notice
itself satisfied statutory and constitutional requirements.
However, these arguments are misplaced. The issue of
whether notice was proper pertains to only whether the
IJ’s in absentia deportation order was correct; an issue,
as we repeatedly have explained, that is separate from
whether the IJ should have rescinded the order upon a
motion to reopen because the alien received no notice of
the hearing. See 8 U.S.C. § 1252b(c)(3)(B) (1988); Joshi v.
Ashcroft, 389 F.3d 732, 736 (7th Cir. 2004) (stating that
with motions to reopen based on lack of notice “the issue
is not notice but receipt, because the statute allows an
alien ordered removed in an absentia proceeding to
reopen the proceeding if he did not receive notice even
if the notice that was sent, whether or not it was received,
satisfied statutory and constitutional requirements”); see
also Sabir, 421 F.3d at 458-59; Pervaiz v. Gonzales, 405
F.3d 488, 492 (7th Cir. 2005); Gurung v. Ashcroft, 371
F.3d 718, 722 (10th Cir. 2004) (“Considerations on a
motion to reopen differ from those relevant to the holding
of an in absentia hearing. A motion to reopen focuses on
whether the alien actually received notice, rather than on
whether the INS sent sufficient notice to the proper
address.”). Thus, our review is confined to whether
12 No. 06-2254
Peralta-Cabrera received notice of his hearing and, if not,
whether he can be charged with receiving the notice
because he “made himself unreachable.”
With that said, it is undisputed that Peralta-Cabrera
did not receive the hearing notice; after all, the record
contains the envelope of the notice stamped “ATTEMPTED
NOT KNOWN.” The question is whether Peralta-Cabrera
can be charged with receiving the notice because he “made
himself unreachable.” We start with what the parties
agree Peralta-Cabrera did and did not do in “making
himself unreachable.” Both sides agree that he informed
immigration agents that he would reside with Arias at
the Cornelia Street address and that the address was
correct and not falsified in an attempt to evade contact
with immigration authorities. The parties further agree
that Peralta-Cabrera never refused service of the notice;
again, there can be no contention on this point because
the record contains the notice that was never delivered,
and there is no evidence suggesting that immigration
authorities attempted to serve the notice in person.
Perhaps most importantly, however, the parties agree
that when immigration authorities attempted to serve
Peralta-Cabrera with notice via certified letter, he was
residing exactly where he stated he would be: around
the corner from Wrigley Field at 841 West Cornelia,
Chicago, Illinois, 60657.
So far, so good. But given that at all times pertinent
immigration authorities knew, or should have known,
where Peralta-Cabrera was residing, how exactly does
the government contend he “made himself unreachable”?
The government echoes the BIA’s stance that Peralta-
Cabrera thwarted delivery simply by failing to inform the
immigration agents that all mail must be addressed to him
“in care of ” Florentine Arias. According to the government,
because the INA required Peralta-Cabrera to provide an
address where his hearing notice could be sent, the
No. 06-2254 13
responsibility fell on him to “inform the INS of the addi-
tional language” essential for delivery. As the government
states, Peralta-Cabrera “was in the best position to provide
the complete address,” and because he did not, he “made
himself unreachable.”
We have no quarrel with the government’s assertion that
an alien has a duty to provide immigration authorities
with an address where he can be contacted. See 8 U.S.C.
§ 1252b(a)(1)(F) (1988); In re Grijalva, 21 I. & N. Dec. 27,
33 (B.I.A. 1995) (“It is incumbent upon the [alien] to
provide an address where he can receive mail in a regular
and timely manner.”). We fail to understand, though, how
that duty translates into the additional burden of ensur-
ing that the government will properly address a hearing
notice mailed to the alien. The government contends that
this is so because the alien is “in the best position” to
direct the government how to address the hearing notice.
But this assertion runs counter to the INA’s mandate
that it is the government’s duty to ensure that hearing
notices are successfully “given” to the alien, see 8 U.S.C.
§ 1252b(a)(2)(A) (1988), as well as the notion that, in most
instances, it is the government’s responsibility to ensure
that notice by mail is successfully delivered, see, e.g., Jones
v. Flowers, 126 S. Ct. 1708, 1716-21 (2006) (holding notice
of impending tax sale of property was not reasonably
calculated to reach property owner when notice sent via
certified letter by state was returned unclaimed and state
did not take additional reasonable steps to ensure notice
was provided); Terezov v. Gonzales, 480 F.3d 558, 555-56
(7th Cir. 2007) (“It is an abuse of discretion to refuse to
rescind an in absentia order of removal and reopen the
proceedings when the record shows that the [Department
of Homeland Security] sent the alien’s Notice to Appear to
an incorrect or old address.”); Singh v. Gonzales, 412 F.3d
1117, 1121-22 (9th Cir. 2005) (concluding that denial of
14 No. 06-2254
motion to reopen was an abuse of discretion where evi-
dence showed that immigration authorities sent a hear-
ing notice to an old address).
We think the government, not the alien, is “in the best
position” to know how to properly address a hearing notice.
We cannot see why an alien, having just arrived in the
United States, is “in the best position” to instruct im-
migration agents how to address correspondence to him
when he tells them where he is staying and who he is
staying with. We find it difficult to believe that if an alien
provided an incomplete mailing address under any other
circumstances—say, an address devoid of a street name,
zip code, or even the name of a city—an immigration agent
could sit idly by and accept the information on the assump-
tion that it was correct. To say that an alien is “in the
best position” to know how to address mail expects too
much of the alien and suggests that the government is
incapable of properly utilizing the postal system. And
because the government is, instead, the party “in the
best position” to know how to properly address correspon-
dence to an alien, once an alien satisfies his duty under the
INA and provides an address where he can be contacted,
it is the government’s responsibility to ensure that mail is
properly addressed so that it can be delivered to the
location the alien provided. Cf. Jones, 126 S. Ct. at 1716-
21; Terezov, 480 F.3d at 555-56; Singh, 412 F.3d
at 1121-22.
Here, Peralta-Cabrera informed the government that
he would be staying with Arias while his deportation
proceedings were pending and provided the address of
Arias’s apartment. The responsibility accordingly fell on
the government to ensure that the hearing notice would be
delivered to the address Peralta-Cabrera provided, cf.
Jones, 126 S. Ct. at 1716-21; Terezov, 480 F.3d at 555-56;
Singh, 412 F.3d at 1121-22, and the government, we
No. 06-2254 15
think, under these facts, had the responsibility to address
the notice to Peralta-Cabrera “in care of ” Arias.
As an aside, it is difficult to take seriously the govern-
ment’s contention that Peralta-Cabrera “thwarted” service
of his hearing notice when it could have, at any time,
served the notice on him in person but failed to do so. The
INA explicitly allows hearing notices to be served person-
ally on the alien or, where appropriate, the alien’s repre-
sentative. See 8 U.S.C. § 1252b(a)(2)(A) (1988). And
although it is “not our responsibility to prescribe the
form of service that the [government] should adopt,” see
Jones, 126 S. Ct. at 1721 (quoting Greene v. Lindsey, 456
U.S. 444, 455 n.9 (1982)), perhaps in this case personal
service would have been appropriate (and easier to accom-
plish than service by mail) since immigration authorities
knew that Peralta-Cabrera was residing at Arias’s apart-
ment. Or, perhaps better yet, the government could have
provided Peralta-Cabrera with notice of his hearing
when immigration agents detained him at O’Hare; initial
court dates are routinely set at the time that people are
arrested, and we fail to understand why that docketing
procedure cannot translate to the immigration context.
But that aside, because the government opted instead to
serve Peralta-Cabrera with his hearing notice via certified
mail, it had the responsibility to ensure that the notice
would be delivered to the address he provided.
Peralta-Cabrera’s petition for review is GRANTED. The
case is REMANDED to the BIA with instructions to grant
Peralta-Cabrera’s motions to reopen and to vacate his in
absentia deportation order. We express no opinion regard-
ing his motion to transfer venue.
16 No. 06-2254
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-7-07