In re M-D-, Board of Immigration Appeals

The respondent, a citizen of Guinea, entered the US without permission in February 2000, and in November 2000 filed an application for asylum. The application was referred to an immigration court, which issued a notice to appear for deportation proceedings and setting a time for a hearing. This notice was sent by certified mail to the address listed on the asylum application. Numerous attempts were made to deliver the notice, but it was returned unclaimed. The respondent did not appear at the hearing, and the immigration judge ordered him deported. After receiving the deportation notice, the respondent filed a motion to reopen the proceedings, arguing that he never received notice of the hearing. The motion was denied, and the respondent appealed.

On appeal, the respondent argued that he never received any correspondence from the immigration court, and that service by certified mail violates due process. The Immigration and Nationality Act allows service in deportation proceedings to be made either in person or sent by mail. The method of mailing is not specified. Service does not actually have to occur so long as the INS can show the person can be charged with having received the notice. The Board found that where service was attempted by certified mail, there is a rebuttable presumption that adequate notice was given. The Board also found that the respondent failed to rebut this presumption. He did not allege that the notice was sent to the wrong address, and the Board found that his failure to respond to Post Office notices was the primary cause for not receiving the notice. The Board also rejected the respondent’s argument that the use of certified mail violated due process. Therefore, it affirmed the deportation order.