John Ogobodo Eze v. Alberto R. Gonzáles, Attorney General of the United States

United States Court of Appeals
For the First Circuit
No. 04-2091
JOHN OGOBODO EZE,
Petitioner,
v.
ALBERTO R. GONZÁLES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Stephen A. Lagana and Lagana & Associates, on brief for
petitioner.
John D. Williams, Trial Attorney, Office of Immigration
Litigation, Civil Division, Peter D. Keisler, Assistant Attorney
General, and Douglas E. Ginsburg, Senior Litigation Counsel, on
brief for respondent.
February 23, 2007

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TORRUELLA, Circuit Judge. At issue here is whether the
Board of Immigration Appeals ("BIA") erred in determining that
petitioner, John Ogobodo Eze ("Eze"), was properly served notice of
the Department of Homeland Security's ("DHS") (formerly the
Immigration and Naturalization Service) termination of his
temporary resident status. The regulation governing notice of
termination of an alien's temporary resident status is codified at
8 C.F.R. § 245a.2(u)(2)(i). The regulation provides in relevant
part:
[T]ermination of an alien's temporary resident
status . . . will be made . . . only on notice
sent to the alien by certified mail directed
to his or her last known address, and to his
or her representative, if any. The alien must
be given an opportunity to offer evidence in
opposition to the grounds alleged for
termination of his or her status. Evidence in
opposition must be submitted within thirty
(30) days after the service of the Notice of
Intent to Terminate.
Id.
The BIA determined that Eze received proper service of
the DHS's notice through personal delivery of the notice, rather
than notice by certified mail, as described in the regulations. On
appeal, Eze challenges this determination, arguing that only
service by certified mail -- and not by personal delivery --
complies with the governing regulation, and that the government's
failure to comply with the governing regulation in this case
violated his due process rights. Because the BIA's determination

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that Eze received proper notice was based on its interpretation of
immigration regulations, the issue is a legal one but our review is
subject to principles of deference, Elien v. Ashcroft, 364 F.3d
392, 396 (1st Cir. 2004) (citing INS v. Aguirre-Aguirre, 526 U.S.
415, 424-25 (1999)); of course, we review de novo any determination
of the contours of the due process clause, see Albathani v. INS,
318 F.3d 365, 372 (1st Cir. 2003).
Under 8 C.F.R. § 103.5a(a)(2), the general regulations
concerning immigration, personal service includes both "[d]elivery
of a copy personally" and "[m]ailing a copy by certified or
registered mail." Neither form of service is considered superior.
Id. Indeed, there is little practical difference in the two forms
of service. Certainly, personal delivery is at least as likely as
delivery by certified mail to ensure that notice is received.
Moreover, there is no evidence on record that Eze was
prejudiced by personal delivery of the notice of termination of his
temporary resident status. The record indicates that the well
established principle of "notice and opportunity to be heard" was
fulfilled. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
542 (1985) (stating that notice and an opportunity to be heard
together comprise an "essential principle of due process"); Oakes
v. United States, 400 F.3d 92, 98 (1st Cir. 2005) (same). In fact,
Eze admits that he received and signed the notice of termination of
his temporary resident status. Furthermore, the notice

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specifically orders the termination of his status, and provides
Eze's appeal rights and the requisite appeal form. This not only
confirms that Eze received the notice, but that he also had the
opportunity to be heard on appeal. Clearly, the personal delivery
of the notice adequately notified Eze.
Affirmed.

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