Summary
The en banc Ninth Circuit vacated the denial of Leopoldo Rivera-Valdes’s motion to dismiss an indictment for illegal reentry under 8 U.S.C. § 1326 and remanded for further proceedings. The court held that due process notice in removal proceedings is governed by Mullane and Jones, requiring the government to take additional reasonable steps when it learns that mailed notice was ineffective, if practicable. The court left unresolved whether Rivera-Valdes could satisfy the other requirements for collaterally attacking the removal order under § 1326(d).
Topics
Practice areas
Questions Presented
- Whether due process notice requirements in immigration removal proceedings are governed by the standards articulated in Mullane v. Central Hanover Bank & Trust Co. and Jones v. Flowers.
- Whether the Government's notice was reasonably calculated to inform Rivera-Valdes of the date, time, and location of his removal hearing after the certified-mail notice was returned unclaimed.
- Whether compliance with the Immigration and Nationality Act's statutory notice requirements necessarily satisfied constitutional due process.
- Whether personal service of an Order to Show Cause stating that a future hearing would be scheduled supplied constitutionally adequate notice of the later hearing.
- Whether Rivera-Valdes forfeited his due process claim by failing to update his address.
- Whether the district court should determine on remand whether other practicable notice measures were available and whether Rivera-Valdes can satisfy the remaining requirements of 8 U.S.C. § 1326(d).
Holdings
- Notice afforded to noncitizens subject to removal is governed by the due process standards articulated in Mullane and Jones. Notice must be reasonably calculated to apprise the noncitizen of the pendency of removal proceedings and provide a meaningful opportunity to appear and participate.
- When the Government learns that its notice effort has not succeeded, that knowledge triggers an obligation to take additional reasonable steps to effect notice if practicable. Notice is not reasonably calculated when the Government knows its method of service was ineffective and takes no reasonably available additional steps.
- Compliance with the INA's statutory notice requirements does not necessarily establish compliance with constitutional due process.
- Personal service of an Order to Show Cause stating only that a deportation hearing would be scheduled at an unknown future date, without the hearing's date, time, and location, did not by itself provide constitutionally adequate notice of the hearing.
- Rivera-Valdes did not forfeit his constitutional right to sufficient notice merely by allegedly failing to update his address, and the record did not establish the Government's premise that he had moved.
- The case must be remanded for the district court to determine whether the agency had other practicable alternatives to attempt notice and, if a due process violation is established, whether Rivera-Valdes satisfies the remaining requirements for collateral attack under § 1326(d), including prejudice, exhaustion, and deprivation of judicial review.
Key quotations
“We hold that the notice afforded to noncitizens subject to removal is governed by the due process standards articulated in Mullane and Jones.” (20-21)
“Where the Government learns that its notice efforts have not succeeded, that knowledge triggers an obligation on the Government’s part to take additional reasonable steps to effect notice, if it is practicable to do so.” (20-21)
“When the Government learned that its only attempt to notify Rivera-Valdes of the date, time, and location of his removal hearing had failed, it was not enough for the Government to throw up its hands and do nothing.” (29)
Factual background
Rivera-Valdes, a Mexican citizen, filed an asylum application using a false Guatemalan identity and provided an address in Portland, Oregon. After he withdrew the application, the INS personally served him with an Order to Show Cause stating that a future hearing notice would be mailed to his last provided address. The Government later mailed a scheduling motion by regular mail and a hearing notice by certified mail, but both mailings were returned, the latter as unclaimed; the Government received the returned notice and took no further steps. An immigration judge subsequently ordered Rivera-Valdes deported in absentia, and after his later reentry he was charged under § 1326.
Procedural history
The district court held that the Government's certified-mail notice to Rivera-Valdes's last known address was reasonably calculated to provide notice and denied his motion to dismiss. A three-judge Ninth Circuit panel affirmed, but rehearing en banc was granted and the panel decision was vacated. The en banc court vacated the district court's denial and remanded for further factual proceedings concerning practicable additional notice measures and the remaining requirements of a collateral attack under § 1326(d).
Remand instructions
The district court must determine whether the agency had other practicable alternatives through which to attempt notice, including considering the address discrepancy and potentially available information in the A-file or alternative mailing methods. If a due process violation is established, the district court must also determine whether Rivera-Valdes satisfies the remaining § 1326(d) requirements, including prejudice, administrative exhaustion, and deprivation of judicial review.