Opinion · Court of Appeals for the Ninth Circuit

Youssef Adib Farhoud v. Immigration and Naturalization Service

122 F.3d 794

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1997-10-06
Topic
bankruptcy

holding that alien need not receive actual notice for due process requirements to be satisfied | holding that due process is satisfied if service is conducted in a manner “reasonably calculated” to ensure that notice reaches the alien | holding that notice to the attorney of record constitutes notice to the petitioner | holding that noncitizens have Due Process rights which "include[ ] the right to a full and fair hearing as well as notice of that hearing." | 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 | stating that a petitioner’s “[fjailure to raise an issue below constitutes failure to exhaust administra tive remedies and ‘deprives this court of jurisdiction to hear the matter’ ” | sending notice of the hearing via certified mail to the most recent address provided to the INS fulfills the notice requirement | 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” | first citing U.S. Const. amend. V; and then citing Landon vy. Plasencia, 459 U.S. 21, 32-33 (1982) | "Due process is satisfied if service is conducted in a manner 'reasonably calculated' to ensure that notice reaches the alien." | “An alien does not have to actually receive notice of a deportation hearing in order for the requirements of due process to be satisfied.” | “alien does not have to actually receive notice of deportation hearing in order for requirements of due process to be satisfied” | no exceptional circumstance where the notice of hearing was mailed to the last known address and where receipt was acknowledged “by someone at that address” | “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.” | notice of deportation proceeding by first‑class mail to last known address held sufficient | “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.”

Citator

Cited by
46 opinions
FARHOUD v. IMMIGRATION NATURALIZATION SER.,122 F.3d 794(9th Cir. 1997)
YOUSSEF ADIB FARHOUD, Petitioner, v. IMMIGRATION AND NATURALIZATION
SERVICE, Respondent.
No. 96-70337
United States Court of Appeals, Ninth Circuit.
Submitted May 9, 1997 — Pasadena, California.
Filed May 30, 1997
As Amended September 2, 1997 and October 6, 1997
Page 795
COUNSEL
Jesse A. Moorman, Los Angeles, California, for the petitioner.

Norah Ascoli Schwarz, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.
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.
[1] ORDER
[2] The opinion filed on May 30, 1997, is amended as follows: On slip Opinion page 6298, lines 16-17, delete "Matter of Ruiz, Interim Dec.3116(BIA 1989)" and replace it with "Sharma v. INS,89 F.3d 545,547(9th Cir. 1996)."

[3] With the exception of the amendment listed above, the petition for rehearing and the request to withdrawn the opinion is DENIED.
[4] OPINION
T.G. NELSON, Circuit Judge:
[5] OVERVIEW
[6] 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 under8 U.S.C. § 1105a(a).

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

[8] For the reasons stated below, we deny the petition.Page 796
[9] NOTICE OF THE DEPORTATION HEARING
[10] [1] Notice of hearing required by8 U.S.C. § 1252b(a)(2) was mailed by certified mail 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 under8 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."
[11] EXCEPTIONAL CIRCUMSTANCES
[12] 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.

[13] [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. Sharma v. INS,89 F.3d 545,547(9th Cir. 1996). 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.
[14] DUE PROCESS
[15] 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).

[16] 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).

[17] [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).

[18] [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. See United States v. Estrada-Trochez,66 F.3d 733,736736n. 1 (5th Cir. 1995).

[19] [5] Pursuant to8 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 Section 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.Page 797
[20] OTHER ISSUES
[21] 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.

[22] PETITION DENIED.

[23] Respondent's motion to augment the record is GRANTED.