Williams v. Mukasey , 531 F.3d 1040 ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IYABO WILLIAMS, 
Petitioner, No. 05-70987
v.
 Agency No.
A40-392-119
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 13, 2008*
San Francisco, California
Filed July 9, 2008
Before: J. Clifford Wallace and Susan P. Graber,
Circuit Judges, and Robert J. Timlin, ** District Judge.
Opinion by Judge Graber
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
**The Honorable Robert J. Timlin, United States District Court for the
Central District of California, sitting by designation.
8353
WILLIAMS v. MUKASEY 8355
COUNSEL
Donald Ungar, San Francisco, California, for the petitioner.
James E. Grimes, Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C., for the respondent.
OPINION
GRABER, Circuit Judge:
Petitioner Iyabo Williams, a Nigerian national, petitions for
review of the Board of Immigration Appeals’ denial of her
untimely motion to reopen. Petitioner was ordered deported
following her conviction and sentencing for conspiracy to
import a controlled substance in violation of 21 U.S.C. § 963and conspiracy to distribute a controlled substance in viola-
tion of 21 U.S.C. § 846. Although Petitioner became subject
to a final order of removal on February 18, 1994, she did not
file her motion to reopen until November 5, 2004.
Petitioner seeks reopening pursuant to the regulations
implementing the United States’ obligations under the United
Nations Convention Against Torture and Other Cruel, Inhu-
man or Degrading Treatment or Punishment (“CAT”), Dec.
10, 1984, 1465 U.N.T.S. 85, 23 I.L.M 1027. See Regulations
8356 WILLIAMS v. MUKASEY
Concerning the Convention Against Torture (“CAT Regula-
tions”), 64 Fed. Reg. 8478, 8482-83 (Feb. 19, 1999) (codified
at various parts of 8 C.F.R.); 8 C.F.R. §§ 208.16-208.18 (1999).1
Those regulations, which were promulgated while Petitioner
was incarcerated, provide that an alien who became subject to
a final order of removal before March 22, 1999, could submit
a motion to reopen proceedings for consideration of withhold-
ing or deferral of removal under CAT, but only if the motion
were filed before June 21, 1999. 8 C.F.R. § 208.18(b) (1999).
Petitioner argues that she was entitled to “actual notice” of
the reopening procedures under CAT and that, as a result,
publication of the CAT Regulations in the Federal Register
was insufficient notice to afford her due process.2 On de novo
review, Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004),
we disagree. We publish this opinion to clarify that the gen-
eral rules concerning adequacy of notice through publication
in the Federal Register apply in the immigration context.
[1] Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306 (1950), and its progeny provide the “appropriate
analytical framework” for considering the adequacy of notice
of government action. Dusenbery v. United States, 534 U.S.
1The regulations have been renumbered as 8 C.F.R. §§ 1208.16-
1208.18.
2
Petitioner does not contend that the law library where she was incarcer-
ated lacked legal materials concerning the CAT Regulations, nor does she
argue that equitable tolling applies. See, e.g., Roy v. Lampert, 465 F.3d
964, 973-74 (9th Cir. 2006) (concluding that the petitioners “made suffi-
cient allegations of extraordinary circumstances” that were beyond their
control to justify remanding the case for an evidentiary hearing on their
contention that a deficient prison law library justified equitable tolling of
the one-year statute of limitations in the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1)); Whalem/Hunt
v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (per curiam)
(remanding for development of the record on the petitioner’s contention
that his late-filed habeas corpus petition should be allowed because of
equitable tolling or a finding of “impediment” under AEDPA, 28 U.S.C.
§ 2244(d)(1)(B)).
WILLIAMS v. MUKASEY 8357
161, 167-68 (2002). Under that framework, “due process
requires the government to provide ‘notice reasonably calcu-
lated, under all the circumstances, to apprise interested parties
of the pendency of the action and afford them an opportunity
to present their objections.’ ” Jones v. Flowers, 547 U.S. 220,
226 (2006) (quoting Mullane, 339 U.S. at 314). As a general
rule, “publication in the Federal Register is legally sufficient
notice to all interested or affected persons regardless of actual
knowledge or hardship resulting from ignorance.” Camp v.
U.S. BLM, 183 F.3d 1141, 1145 (9th Cir. 1999) (internal quo-
tation marks omitted).
[2] Publication in the Federal Register may not be suffi-
cient notice to a party when the published information con-
cerns imminent government action that directly affects the
party’s rights and that party’s interest in the government
action is more than “purely speculative.” See Covelo Indian
Cmty. v. Fed. Energy Regulatory Comm’n, 895 F.2d 581, 588
(9th Cir. 1990) (per curiam) (addressing the sufficiency of
notice through publication in the Federal Register of the Fed-
eral Energy Regulatory Commission’s (“FERC”) relicensing
of a hydroelectric plant and addressing the plaintiff’s conten-
tion that due process required actual notice). Here, Petitioner
cannot establish that the government had anything more than
speculative knowledge that she was eligible for CAT relief
when the regulations were promulgated. See id. at 587-88(explaining that the effect of FERC’s actions on the plaintiff
was “purely speculative” and that, even though the relicensing
of the hydroelectric plant “might” affect the plaintiff’s inter-
ests, it was “far from certain” that the value of the plaintiff’s
water and fishing rights would be diminished by FERC’s
actions). Accordingly, publication of the CAT Regulations in
the Federal Register provided Petitioner with the notice that
due process required. See id. at 588 (rejecting the plaintiff’s
contention that publication in the Federal Register provided
inadequate notice and that actual notice was required).
8358 WILLIAMS v. MUKASEY
[3] To the extent that Petitioner also claims that publication
in the Federal Register was “insufficient in law,” see 44
U.S.C. § 1507,3 that argument fails because the government
had no independent legal duty to provide notice by a different
method, see Camp, 183 F.3d at 1145 (holding that notice by
publication was “insufficient in law” because the BLM had an
“independent legal duty” to provide personal notice to Camp
under then-applicable federal regulations). Petitioner suggests
that publication in the Federal Register is “insufficient in law”
simply because there are more effective methods of notice
that are not particularly burdensome, such as circulation of
notice among the prison population. But the availability of an
alternative method of notice, regardless of its reasonableness,
does not itself impose a legal obligation.
PETITION FOR REVIEW DENIED.
3
Section 1507 provides, in relevant part, that the “filing of a document
[in the Federal Register] . . . , except in cases where notice by publication
is insufficient in law, is sufficient to give notice of the contents of the doc-
ument to a person subject to or affected by it.” 44 U.S.C. § 1507 (empha-
sis added).