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Farhoud v. Immigration Naturalization Serv

United States Court of Appeals, Ninth Circuit
May 30, 1997
114 F.3d 867 (9th Cir. 1997)

Summary

holding that petitioner had failed to demonstrate exceptional circumstances or lack of notice warranting rescission of an in absentia removal order where although petitioner did not personally receive the notice of hearing, it was mailed to petitioner's last known address and receipt was acknowledged

Summary of this case from Gonzalez-Franco v. Mukasey

Opinion

No. 96-70337

Submitted May 9, 1997 — Pasadena, California.

Filed May 30, 1997

Petition to Review a Decision of the Immigration and Naturalization Service.

INS No. A29-470-217.

Before: J. Clifford Wallace, David R. Thompson, and Thomas G. Nelson, Circuit Judges.


OPINION


OVERVIEW

Petitioner seeks review of: (1) dismissal by the Board of Immigration Appeals ("Board") of his appeal from an in absentia deportation order on the ground that he did not receive notice of his deportation hearing; and (2) the denial of his motion to reopen by the Immigration Judge on the ground that he presented "exceptional circumstances" that excused his failure to appear. We have jurisdiction under 8 U.S.C. § 1105a(a).

Petitioner raises for the first time a due process objection as to notice and opportunity to appear at the deportation hearing.

For the reasons stated below, we deny the petition.

NOTICE OF THE DEPORTATION HEARING

[1] Notice of hearing required by 8 U.S.C. § 1252b(a)(2) was mailed to petitioner at his address of record by the Office of the Immigration Judge on December 30, 1994. Petitioner conceded that he was living at that address on that date. This is sufficient notice under 8 U.S.C. § 1252b(c)(1), which provides that notice of a deportation hearing is sufficient "if provided at the most recent address provided [to the INS by the alien as required by] subsection (a)(1)(F) of this section."

EXCEPTIONAL CIRCUMSTANCES

Petitioner is a Lebanese refugee who was involved in the anti-Syrian movement in Lebanon. Members of petitioner's family were killed by the Syrian military, and petitioner himself has received death threats. Petitioner was imprisoned and tortured by the Syrian military and fled to the United States upon his release.

[2] The sole issue in a motion to reopen is whether an alien can demonstrate exceptional circumstances that excuse his failure to appear at the deportation hearing. Matter of Ruiz, Interim Dec. 3116 (BIA 1989). While we have sympathy for petitioner's personal circumstances, they are not relevant to the issue before this court — his failure to appear. Petitioner's only claim of exceptional circumstances was that he did not actually and personally receive the notice of hearing. However, as noted above, it was mailed to his last known address and receipt was acknowledged by someone at that address. Thus, petitioner did not demonstrate exceptional circumstances, and it was not an abuse of discretion for the Immigration Judge to deny his motion to reopen.

DUE PROCESS

A petitioner must exhaust his administrative remedies before seeking judicial review. 8 U.S.C. § 1105a(c); Liu v. Waters, 55 F.3d 421, 425-26 (9th Cir. 1995). Failure to raise an issue below constitutes failure to exhaust administrative remedies and "deprives this court of jurisdiction to hear the matter." Vargas v. United States Dep't of Immigration and Naturalization, 831 F.2d 906, 907 (9th Cir. 1987).

There are exceptions to the exhaustion requirement. Relevant to this case is the rule that the exhaustion requirement will not apply where, as here, there is a constitutional challenge to the Immigration and Naturalization Act or procedures of the Immigration and Naturalization Service. Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir. 1994).

[3] The Due Process Clause protects aliens in deportation proceedings and includes the right to a full and fair hearing as well as notice of that hearing. U.S. Const. amend. V; Landon v. Plasencia, 459 U.S. 21, 32-33 (1982). The United States Supreme Court has made it clear that "notice must be such as is reasonably calculated to reach interested parties." Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 318 (1950).

[4] An alien does not have to actually receive notice of a deportation hearing in order for the requirements of due process to be satisfied. Rather, due process is satisfied if service is conducted in a manner "reasonably calculated" to ensure that notice reaches the alien. We agree with the Fifth Circuit that notice of a deportation hearing sent by regular mail to the last address provided by the alien to the INS satisfies the requirements of constitutional due process under Mullane. See United States v. Estrada-Trochez, 66 F.3d 733, 736 736 n. 1 (5th Cir. 1995).

[5] Pursuant to 8 U.S.C. § 1252b(a)(1)(F), petitioner was required to provide the Attorney General with his current address. Petitioner complied, and the Office of the Immigration Judge mailed notice of petitioner's deportation hearing to the address given in compliance with § 1252b(a)(1)(F). The method of service was reasonably calculated to ensure that notice reached the petitioner. Therefore, petitioner's due process claim is denied.

OTHER ISSUES

All other issues raised in petitioner's opening brief were not raised before the proper administrative body. Because petitioner has failed to exhaust his administrative remedies, we need not address the remaining issues raised on appeal.

PETITION DENIED.

Respondent's motion to augment the record is GRANTED.


Summaries of

Farhoud v. Immigration Naturalization Serv

United States Court of Appeals, Ninth Circuit
May 30, 1997
114 F.3d 867 (9th Cir. 1997)

holding that petitioner had failed to demonstrate exceptional circumstances or lack of notice warranting rescission of an in absentia removal order where although petitioner did not personally receive the notice of hearing, it was mailed to petitioner's last known address and receipt was acknowledged

Summary of this case from Gonzalez-Franco v. Mukasey

holding that noncitizens have Due Process rights which "include the right to a full and fair hearing as well as notice of that hearing."

Summary of this case from United States v. Arteaga-Centeno

finding that a petitioner's failure to "actually and personally receive the notice of hearing" did not constitute an exceptional circumstance that would excuse his failure to attend the hearing, where receipt of the notice "was acknowledged by someone at [his] address"

Summary of this case from Gomez v. Holder

finding no exceptional circumstances where petitioner claimed he did not receive letter noticing hearing and presented no other facts suggesting a compelling situation

Summary of this case from Vukmirovic v. Holder

finding that due process is satisfied if service is conducted in a manner `reasonably calculated' to ensure that notice reaches the alien

Summary of this case from Young v. Gonzales

finding that petitioner's claim that he did not receive notice of his deportation hearing did not qualify as an exceptional circumstance

Summary of this case from Socop-Gonzalez v. I.N.S.

rejecting an alien's due process claim because notice was mailed to the alien's address of record pursuant to the applicable statute and "due process is satisfied if service is conducted in a manner `reasonably calculated' to ensure that notice reaches the alien"

Summary of this case from Singh v. Gonzales

rejecting a claim of inadequate notice under the amended statute

Summary of this case from Urbina-Osejo v. I.N.S.

noting that failure to raise an issue below constitutes failure to exhaust administrative remedies and may deprive the court of jurisdiction to hear the matter

Summary of this case from Alonso-Castenada v. Whitaker

declining to address issues that were not raised before the proper administrative body

Summary of this case from Ixpata-Bolvito v. Holder
Case details for

Farhoud v. Immigration Naturalization Serv

Case Details

Full title:YOUSSEF ADIB FARHOUD, Petitioner, v. IMMIGRATION AND NATURALIZATION…

Court:United States Court of Appeals, Ninth Circuit

Date published: May 30, 1997

Citations

114 F.3d 867 (9th Cir. 1997)
122 F.3d 794

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