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Echeverri-Perez v. U.S. Immigration and Naturalization Service

filed: March 25, 1993.

FRANCISCO JAVIER ECHEVERRI-PEREZ, PETITIONER,
v.
U.S. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition to Review a Decision of the Immigration and Naturalization Service. DC NO. A17-494-618

Before: D.w. Nelson, Thompson, Circuit Judges, and Pro, District Judge.*fn**

MEMORANDUM

Petitioner Francisco Javier Echeverri-Perez ("Echeverri-Perez") appeals an affirmance by the Bureau of Immigration Appeals ("BIA") of a deportation order. Echeverri-Perez claims that the order is invalid because he never received notice of the deportation hearing. In June 1992, we stayed deportation and remanded this case so that an immigration Judge could hear Echeverri-Perez' motion to reopen his case; this motion recently was rejected. We now affirm the deportation order, finding that Echeverri-Perez had reasonable opportunity to be present at the deportation hearing.

Echeverri-Perez is a 42-year old native of Colombia. He became a legal permanent resident of the United States in 1967, at age 19. In January of 1988, Echeverri-Perez was convicted of possession of cocaine and sentenced to two years in prison. Later that year, while in prison, the INS personally served him with an Order to Show Cause, charging him with deportability under 8 U.S.C. § 1251(a)(11). The Order indicated that Echeverri-Perez was to appear at a deportation hearing at a place and time to be determined and contained the following warning: "failure to attend the hearing . . . may result in a determination being made by the Immigration Judge in your absence."

Echeverri-Perez does not deny that he received the Order to Show Cause or that he signed and dated the reverse side, which explained the consequences of failing to appear at the hearing. Indeed, when he received it, he requested an immediate hearing and gave his address as 9320 Tampa Avenue, Northridge, CA91324. Six months later, the INS sent, by ordinary mail, a Notice of Hearing with a June 16 hearing date to Echeverri-Perez at the Tampa Avenue address he had provided. He failed to appear at the hearing and later claimed he never received the Notice of Hearing.

Relying on 8 U.S.C. § 1252(b), the INS requested that the immigration Judge proceed with the hearing in absentia. That section provides, in pertinent part, that:

If any alien has been given a reasonable opportunity to be present at a proceeding under this section, and without reasonable cause fails or refuses to attend or remain in attendance at such proceeding, the special inquiry officer may proceed to a determination in like manner as if the alien were present.

8 U.S.C. § 1252(b) (emphasis added). The immigration Judge granted the request to proceed in absentia and found Echeverri-Perez deportable under 8 U.S.C. § 1251(a)(11). He entered a deportation order and sent notice of that order to the Tampa Avenue address.

Echeverri-Perez received this notice, immediately obtained counsel, and filed a timely appeal with the BIA. On appeal, he argued that the deportation order was invalid because he had "reasonable cause" for being absent at the deportation hearing, never having received actual notice of the hearing. He also claimed, for the same reason, that he was not given a "reasonable opportunity" to be present at the hearing.

The BIA affirmed the in absentia deportation order. It found that Echeverri-Perez had moved from the Tampa Avenue address and failed to comply with INS regulations concerning notification of change of address which provides that:

Each alien required to be registered under this title who is within the United States shall notify the Attorney General in writing of each change of address and new address within ten days from the date of such change and furnish with-such notice such additional information as the Attorney General may require by regulation.

8 U.S.C. § 1305(a). The BIA concluded that Echeverri-Perez had reasonable opportunity to be present at the hearing and that he did not have reasonable cause to be absent.

On remand from this court, an immigration Judge considered and denied Echeverri-Perez' motion to reopen. Without holding a hearing, the immigration Judge found that Echeverri-Perez had notified the U.S. Post Office of his new address but had failed to notify the INS of this change as required by § 1305(a). He concluded that Echeverri-Perez had reasonable opportunity to attend the deportation hearing, since "notice to an alien's last known address, [sic] is considered notice to the alien."

The issue before this court is whether or not the in absentia hearing conducted pursuant to 8 U.S.C. § 1252(b) is valid in this case, where the petitioner claims he never received actual notice of the deportation hearing.*fn1 The hearing is invalid if Echeverri-Perez did not have a "reasonable opportunity" to be present at the hearing. 8 U.S.C. § 1252(b); see also, INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984). We review purely legal questions about the Immigration and Nationality Act de novo. Abedini v. INS, 971 F.2d 188, 190-91 (9th Cir. 1992). We review factual findings in the immigration ...


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