United States v. 2009-07-06 | 05-76507 | POPA VHOLDER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 TALIDA IOANA POPA,
Petitioner, No. 05-76507
v. Agency No.
 A079-804-545ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 9, 2009—San Francisco, California
Filed July 6, 2009
Before: Mary M. Schroeder, A. Wallace Tashima, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
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COUNSEL
Jagdip Singh Sekhon, Sekhon & Sekhon, San Francisco, Cali-
fornia, for the petitioner.
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Peter D. Keisler, Assistant Attorney General; Barry J. Pet-
tinato; David C. Kully; Washington, District of Columbia, for
the respondent.
OPINION
BEA, Circuit Judge:
The sole issue in this appeal is whether the government is
permitted to provide notice of removal proceedings to an alien
using a two-step process: (1) sending a Notice to Appear in
which the government states that the date and time of the
hearing will be provided at a later time and (2) later sending
notice of the hearing with the date and time of the hearing.
Talida Popa, a native and citizen of Romania, petitions for
review of the Board of Immigration Appeals’ (“BIA”) deci-
sion affirming the Immigration Judge’s (“IJ”) order denying
her motion to reopen removal proceedings following a
removal hearing in absentia. Popa contends she did not
receive proper notice of the time and place of the hearing
because her Notice to Appear bore no time and place for the
hearing; it stated Popa would be notified of the time and place
in a separate and later writing. That later writing, which did
contain the date, time, and place of the hearing, was sent to
a post office box she no longer checked. We hold the govern-
ment is permitted to use the two-step process. We deny
Popa’s petition.
I. Factual and Procedural Background
On July 29, 2002, Popa was lawfully admitted to the United
States as an exchange visitor1 authorized to remain in the U.S.
1Popa entered the U.S. on a J-1 Exchange Visitor Visa. A J-1 Visa is
provided to individuals “for educational and cultural exchange programs
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until October 19, 2002. After entering the United States, Popa
married Jason A. San Souci, a U.S. citizen.2 On April 1, 2003,
San Souci filed a Form I-130—a “Petition for Alien Relative”
—with the Bureau of U.S. Citizenship and Immigration Ser-
vices (“USCIS”) on behalf of Popa; that same day, Popa
applied to USCIS to become a permanent resident based on
the Form I-130. Popa and San Souci lived in Nevada and used
a mail address: P.O. Box 971, Crystal Bay, Nevada.
In January 2004, San Souci informed Popa he had to travel
to New Jersey to attend a child custody hearing regarding his
son from a previous marriage. On January 26, 2004, without
informing Popa, San Souci withdrew the Form I-130 petition;
accordingly, on February 5, 2004, USCIS denied Popa’s
application for status as a permanent resident and sent notice
of the denied application to Popa’s Nevada P.O. box address.
The same day, the government issued Popa a Notice to
Appear (“NTA”) charging her with removability for being
present in the U.S. without a valid, unexpired visa to remain
in the U.S. and for failing to maintain her exchange visitor
status, pursuant to 8 U.S.C. §§ 1227(a)(1)(B) and
1227(a)(1)(C)(i). On February 9, 2004, Popa received the
notice denying her application for status as a permanent resi-
dent and the NTA at her P.O. box address.
The NTA ordered Popa to appear before an immigration
judge at a “[t]ime and date to be set by the U.S. Immigration
Court,” and provided Popa with the Immigration Court’s
address. Additionally, the NTA stated:
designated by the Department of State, Bureau of Consular Affairs . . . .
The “J” exchange visitor program is designed to promote the interchange
of persons, knowledge, and skills in the fields of education, arts, and sci-
ences.” See http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb959
19f35e66f614176543f6d1a/?vgnextoid=a4ac6138f898d010VgnVCM
10000048f3d6a1RCRD&vgnextchannel=48819c7755cb9010VgnVCM
10000045f3d6a1RCRD.
2It is unclear from the record the date they married.
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You are required to provide the [Immigration and
Naturalization Service (“INS”)], in writing, with
your full mailing address and telephone number.
You must notify the Immigration Court immediately
by using Form EOIR-33 whenever you change your
address or telephone number during the course of
this proceeding. You will be provided with a copy of
this form. Notices of hearing will be mailed to this
address. If you do not submit Form EOIR-33 and do
not otherwise provide an address at which you may
be reached during proceedings, then the Government
shall not be required to provide you with written
notice of your hearing. If you fail to attend the hear-
ing at the time and place designated on this notice,
or any date and time later directed by the Immigra-
tion Court, a removal order may be made by the
immigration judge in your absence, and you may be
arrested and detained by the INS.
After Popa received the NTA, she contacted San Souci,
who was still in New Jersey, and San Souci confirmed he
withdrew the Form I-130 petition and was considering recon-
ciling with his ex-wife.3 Popa moved in with her childhood
friend, Voica Matis, who lived in Riverbank, California.4
Popa did not inform the Immigration Court of her address
change.
On February 26, 2004, the Immigration Court mailed a
hearing notice and a Form EOIR-33 to Popa at the same
Nevada P.O. box address to which the government mailed and
at which Popa received the NTA. The hearing notice stated
that Popa’s hearing was scheduled to take place at 9:30 a.m.
on March 16, 2004, at USINS, 1351 Corporate, Reno, NV,
89502. However, Popa did not receive this hearing notice
because she had moved from Nevada to California and had
3It is not clear from the record exactly when Popa contacted San Souci.
4It is not clear from the record exactly when Popa moved in with Matis.
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not checked the mail at her Nevada P.O. box, nor had she ter-
minated her use of the Nevada P.O. box and arranged for her
mail to be forwarded. See 39 C.F.R. § 111.4 (2008);
http://pe.usps.gov/text/dmm300/507.htm.
On March 16, 2004, Popa failed to appear at her hearing
before the Immigration Court. The IJ issued a decision order-
ing Popa removed in absentia.
In June 2004, Popa first met with an attorney to determine
her immigration status. At this meeting, Popa learned of the
March 16, 2004 hearing and the IJ’s decision ordering her
removed to Romania. On September 13, 2004, Popa timely
filed a motion to reopen her removal proceeding and to
rescind her in absentia removal order with the Immigration
Court, contending she never received notice of her hearing.
The IJ denied the motion.
Popa timely appealed to the BIA, which adopted and
affirmed the IJ’s decision, and dismissed Popa’s appeal.5 Popa
timely petitioned this court for review of the BIA’s decision.
II. Standard of Review
When the BIA adopts the IJ’s decision in its entirety citing
Matter of Burbano, 21 I. & N. Dec. 872 (BIA 1994), as here,
this court reviews the IJ’s decision. Abebe v. Gonzales, 432
F.3d 1037, 1039 (9th Cir. 2005) (en banc). This court reviews
claims of error in an IJ’s denial of a motion to reopen for
abuse of discretion. Chete Juarez v. Ashcroft, 376 F.3d 944,
947 (9th Cir. 2004). An IJ “abuses his discretion when he acts
arbitrarily, irrationally, or contrary to law.” Id. (internal cita-
5Before the BIA, in addition to contending she never received notice of
her hearing, Popa also contended “exceptional circumstances” warranted
a reopening of the in absentia removal proceeding. The BIA rejected this
argument. Popa does not raise this issue in her petition for review before
this court.
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tion and quotation marks omitted). Further, this court reviews
de novo claims of error in “determination[s] of purely legal
questions regarding the requirements of the Immigration and
Nationality Act.” Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.
2000).
III. Discussion
Pursuant to 8 U.S.C. § 1229(a), an alien in removal pro-
ceedings must receive written notice—a Notice to Appear—
specifying, in relevant part: (1) 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 num-
ber” and the consequences of the failure to do so; and (2) the
“time and place at which the proceedings will be held.” 8
U.S.C. § 1229(a)(1)(F)(ii)-(iii), (G)(i). If there is a change in
the time and place of such proceedings, the government must
provide written notice to the alien of the change and the con-
sequences of the failure to attend such proceedings. Id.
§ 1229(a)(2)(A). Written notice “shall be given in person to
the alien,” or, “if personal service is not practicable,6 through
service by mail to the alien.” Id. § 1229(a)(1).
Pursuant to 8 U.S.C. § 1229a(b)(5)(A), an “alien who, after
written notice . . . has been provided to the alien or the alien’s
counsel of record, does not attend a proceeding . . . shall be
ordered removed in absentia if the [government] establishes
by clear, unequivocal, and convincing evidence that the writ-
ten notice was so provided and that the alien is removable.”7
Written notice is sufficient if “provided at the most recent
6In-person service “to an alien is not practicable if the alien is not in the
immigration court before the IJ.” Tedeeva v. INS, 88 F.3d 826, 827 (9th
Cir. 1996).
7Popa concedes that a Notice to Appear was sent to her on February 9,
2004, which notice she received. Popa also concedes that a notice of hear-
ing was sent to her on February 26, 2004, which notice she did not receive
because she had moved and had not checked her old post office box to
which the notice was sent.
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address provided [by the alien].” Id. An order of removal
entered in absentia may be rescinded “upon a motion to
reopen filed at any time if the alien demonstrates that the alien
did not receive notice” of the removal proceeding. Id.
§ 1229a(b)(5)(C)(ii); 8 C.F.R. § 1003.23(iii)(A)(2).
A. The Notice to Appear was not statutorily defective.
Popa contends the IJ erred by ordering her removed in
absentia because she did not receive adequate notice of her
removal proceeding. Popa contends the NTA, received on
February 9, 2004, was statutorily defective because it failed
to state the time and date of her hearing, and instead stated the
hearing would take place at a time and date “to be set by the
U.S. Immigration Court,” in violation of 8 U.S.C.
§ 1229(a)(1)(G)(i). Additionally, Popa contends the NTA was
defective because it failed to notify Popa she was required to
notify the Immigration Court of a change in address, in viola-
tion of 8 U.S.C. § 1229(a)(1)(F)(ii).
1. The Notice to Appear did not violate
§ 1229(a)(1)(G)(I).
[1] Although § 1229(a)(1)(G)(i) requires a notice to appear
to “specify[ ]” the time and place at which the proceedings
will be held, this court has never held that the NTA cannot
state that the time and place of the proceedings will be set at
a future time by the Immigration Court. This court silently has
adopted the rule that the time and date of a removal proceed-
ing can be sent after the first notice to appear.
In Dobrota v. INS, 311 F.3d 1206, 1208 (9th Cir. 2002),
Dobrota, a Romanian citizen, entered the U.S. as a nonimmi-
grant visitor with authorization to remain in the U.S. for six
months. Rather than depart at the end of that time period,
Dobrota remained in the U.S. Id. On July 28, 1995, the INS
sent an “Order to Show Cause and Notice of Hearing”8
8Prior to 1996, deportation procedures were governed by 8 U.S.C.
§ 1252b. Under § 1252b, written notice of deportation hearings was
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(“OSC”) to Dobrota’s address of record and to Dobrota’s
counsel. Id. The OSC stated “a hearing date and location
would be determined and notice of these details would be
mailed to the address provided by the respondent.” Id. (inter-
nal quotations marks omitted). On October 7, 1995, the Office
of the Immigration Judge sent a Notice of Hearing that
included the time, date, and location of Dobrota’s deportation
hearing to Dobrota’s address of record; however, Dobrota no
longer resided there and did not receive the notice. Id. at
1209. This court addressed the issue whether the second
notice should have been sent to Dobrota’s attorney because
the first notice was sent to his attorney, and held the second
notice should have been sent to Dobrota’s attorney. Although
this court did not consider whether the original notice was sta-
tutorily defective, this court did not take issue with the two-
step process.9
[2] Some of our sister circuits have taken up the issue of
whether a two-step notice procedure is permissible. The Fifth,
Seventh, and Eighth Circuits have held that a Notice to
Appear that does not include the date and time of an alien’s
deportation hearing, but that states that a date and time will
be set later, is not defective so long as a notice of the hearing
referred to as an “order to show cause.” 8 U.S.C. § 1252b. As with the
notice to appear, the order to show cause was required to specify the time
and place of proceedings. In 1996, § 1252b was repealed and replaced by
8 U.S.C. § 1229, the statute at issue here, that governs removal proceed-
ings.
9Similarly, this court did not question the use of the two-step hearing
notice process in Tedeeva v. I.N.S., 88 F.3d 826 (9th Cir. 1996). In
Tedeeva, the Office of the Immigration Judge sent Tedeeva an order to
show cause, initiating deportation proceedings against her. The order
stated that Tedeeva would be notified of the time and place of her deporta-
tion proceeding at a later time. Three months later, the Office of the Immi-
gration Judge sent Tedeeva a notice advising her of the date and place of
her hearing. Although the court addressed only the issue of whether she
received constructive notice of her hearing, the court, like in Dobrota, did
not take issue with the two-step notice process.
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is in fact later sent to the alien. See Gomez-Palacios v.
Holder, 560 F.3d 354, 359 (5th Cir. 2009) (holding a Notice
to Appear “need not include the specific time and date of a
removal hearing in order for the statutory notice requirements
to be satisfied; that information may be provided in a subse-
quent [notice of hearing]”); Dababneh v. Gonzales, 471 F.3d
806, 809-10 (7th Cir. 2006) (holding that the requirement that
a Notice to Appear state a time and place of the removal hear-
ing may be met with two documents); Haider v. Gonzales,
438 F.3d 902, 907 (8th Cir. 2006) (“The INA simply requires
that an alien be provided written notice of his hearing; it does
not require that the NTA . . . satisfy all of § 1229(a)(1)’s
notice requirements. Our reading of the INA and the regula-
tions compels the conclusion that the NTA and the [notice of
hearing] . . . combined to provided the requisite notice.”). We
agree.
[3] Further, the Immigration Court’s Rules of Procedures,
8 C.F.R. § 1003.18, state that the government is required to
provide in the Notice to Appear, the time, place and
date of the initial removal hearing, where practica-
ble. If that information is not contained in the Notice
to Appear, the Immigration Court shall be responsi-
ble for scheduling the initial removal hearing and
providing notice to the government and the alien of
the time, place, and date of hearing.
As noted by the Seventh Circuit, the Department of Homeland
Security (“DHS”) “frequently serves NTAs where there is no
immediate access to docketing information. In those circum-
stances, DHS may indicate in the NTA that it will give the
alien subsequent notice of the precise time and place of the
hearing once it files the NTA with the appropriate immigra-
tion court.” Dababneh, 471 F.3d at 809. Because circum-
stances may arise in which it is not feasible for an
immigration court to state the date, time, and place of a
removal hearing at the time the NTA is sent, an immigration
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court must be permitted flexibility in sending the alien the
date, time, and place of his removal hearing. Thus, we hold
a Notice to Appear that fails to include the date and time of
an alien’s deportation hearing, but that states that a date and
time will be set later, is not defective so long as a notice of
the hearing is in fact later sent to the alien.
[4] Here, the NTA ordered Popa to appear before an immi-
gration judge at a “[t]ime and date to be set by the U.S. Immi-
gration Court.” On February 26, 2004, the Immigration Court
sent Popa a hearing notice stating that Popa’s hearing was
scheduled to take place at 9:30 a.m. on March 16, 2004, at
USINS, 1351 Corporate, Reno, NV, 89502. Therefore, the
NTA and the hearing notice combined provided Popa with the
time and place of her hearing, as required by 8 U.S.C.
§ 1229(a)(1)(G)(i).
2. The Notice to Appear did not violate
§ 1229(a)(1)(F)(ii).
Popa contends that the section of the NTA that explained
Popa’s duty to inform the Immigration Court of any change
in address was “confusing.” Popa contends, when read
together,
the statements that ‘you must notify the Immigration
Court immediately by using Form EOIR-33 when-
ever you change your address or telephone number
during the course of this proceeding’ and ‘you will
be provided with a copy of the [EOIR-33] form’ . . .
indicate to the recipient that the non-citizen will
receive a Form EOIR-33 at a future hearing where
she will have an opportunity to change her address,
and until that occurs she is without the instrument
that must be used to do so.
Popa contends the NTA was statutorily defective because it
failed to state the requirement that Popa was required to notify
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immediately the Attorney General of any change in her
address in violation of 8 U.S.C. § 1229(a)(1)(F)(ii). Popa’s
contention is without merit.
[5] The NTA does not state that Popa would receive Form
EOIR-33 at a future hearing. The method and the location
where a EOIR-33 is to be provided are not limited to personal
service at a hearing. Nor did the NTA state that her only
opportunity to report any change in address was through a
Form EOIR-33. Although the NTA stated that Popa must
notify the Immigration Court immediately of any change in
address by using a Form EOIR-33, which would be provided
to Popa, it also stated, “If you do not submit Form EOIR-33
and do not otherwise provide an address at which you may be
reached during proceedings, then the Government shall not be
required to provide you with written notice of your hearing.”
(emphasis added). Thus, the statements, read together, make
clear that Popa was not limited to using a Form EOIR-33 to
update her current address, and that her failure to update her
address by another method relieves the government of its
responsibility to provide Popa with written notice of her hear-
ing.10 To hold otherwise would allow an alien who has not
appeared at a hearing where she could be given a Form EOIR-
10Of course, one could read the quoted phrase from the NTA to require
the alien to use the EOIR-33 and “otherwise provide an address at which
you might be reached.” That is, a correctly filled-out EOIR-33 is not
enough; the alien must also “otherwise provide” her address. If the address
were “otherwise provide[d],” failure to use the EOIR-33 would also result
in failure correctly to notify the government of a change of address. But
apart from it being absurd to require two notifications of a change of
address, such a reading would be inconsistent with the provisions of the
NTA form, which specifically direct the use of Form EOIR-33 alone. See
NTA (“You must notify the Immigration Court immediately by using
Form EOIR-33 whenever you change your address or telephone number
during the course of this proceeding,” and “You will be provided with a
copy of this form.”). The only reasonable interpretation of this language
is that, like all governmental agencies, the INS liked its forms to be used,
but that any other means of address change notification was also permissi-
ble.
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33, to change addresses, not notify the immigration authorities
of her new address, and avoid ever receiving a Form EOIR-
33. She could thus avoid removal proceedings, unless appre-
hended and detained. Such a holding would be an unreason-
able interpretation of the statute. Further, it should also be
noted that, in a different section, the NTA provided the
address of the local Office of the Immigration Judge; thus,
Popa could have contacted that office to report her change in
address.
[6] Because the NTA advised Popa of her responsibility to
update the Immigration Court of any change in address, the
NTA met the requirements of 8 U.S.C. § 1229(a)(1)(F)(ii).
B. The IJ’s order removing Popa in absentia did not
violate Popa’s right to due process.
Finally, Popa contends the in absentia removal proceedings
violated her due process rights because she was not afforded
adequate notice of the proceedings.
[7] The Due Process Clause of the Fifth Amendment of the
United States Constitution “protects aliens in deportation pro-
ceedings and includes the right to a full and fair hearing as
well as notice of that hearing.” Farhoud v. INS, 122 F.3d 794,
798 (9th Cir. 1997). The “Supreme Court has made it clear
that notice must be such as is reasonably calculated to reach
interested parties.” Id. (internal citation and quotation marks
omitted). An alien “does not have to actually receive notice
of a deportation hearing in order for the requirements of due
process to be satisfied.” Id. Due process “is satisfied if service
is conducted in a manner ‘reasonably calculated’ to ensure
that notice reaches the alien.” Id. The government satisfies
notice requirements “by mailing notice of the hearing to an
alien at the address last provided to the INS.” Dobrota, 311
F.3d at 1211. If an alien fails to appear at the removal hearing,
an IJ may enter an order of removal in absentia so long as
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these notice requirements are met. See Khan v. Ashcroft, 374
F.3d 825, 828 (9th Cir. 2004).
[8] The government mailed the NTA to Popa’s last pro-
vided address—the P.O. box in Nevada. Popa then moved to
California. Because Popa failed to update her address, the
government mailed a notice of hearing to her Nevada address.
As Popa concedes, the government mailed the notice of hear-
ing to the address Popa most recently provided to the govern-
ment.11 Although Popa contends her due process rights were
violated because the NTA did not inform her of her duty to
keep the government informed of any changes to her address,
as discussed above, her contention is without merit. The NTA
did notify Popa of her duty to update her address after any
changes, as well as the consequences of a failure to do so.
Thus, Popa’s right to due process was not violated because
the Immigration Court mailed notice of her hearing to Popa’s
last provided address.
IV. Conclusion
We deny Popa’s petition for review of the BIA’s decision
affirming the IJ’s order denying her motion to reopen removal
proceedings.
PETITION DENIED.
11Popa did not have a forwarding address in her Nevada P.O. box.
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