Dobrota v. INS, Ninth Circuit
Aurelian Dobrota, a citizen of Romania, came to the US in 1993 as a tourist, overstayed his visa and applied for asylum. After filing the application, but before any hearing, he hired an attorney. In 1994, the asylum application was denied, and a notice of the denial was sent to both Dobrota and his attorney. In 1995, Dobrota moved without notifying the INS. Also in 1995, the INS issued a order placing Dobrota in deportation proceedings. This notice was sent both to Dobrota’s previous address and to his attorney. A couple of months later the INS sent a notice scheduling the hearing. This notice was sent only to Dobrota’s address on file, not to his attorney. The notice was returned to the INS with an indication that delivery had been attempted but failed. Neither Dobrota nor his attorney appeared at the hearing, and Dobrota was ordered deported in absentia. A couple of years later the attorney received a notice detailing arrangements for Dobrota’s deportation.
The attorney promptly filed a motion to reopen the proceedings. This motion was denied, and Dobrota appealed to the Board of Immigration Appeals. The Board found the immigration judge did not provide adequate reason for the denial, and remanded the case. On remand, the judge found that because the INS sent all notices to the address it had on file, it had satisfied all its obligations. This decision was also appealed. The Board this time affirmed the denial, and Dobrota appealed to the Ninth Circuit.
Notice of INS proceedings must be given in the way most reasonably calculated to reach the person whose presence is needed. INS regulations specifically provide that the notice need only be mailed to the most recent address the alien has provided the agency, so there are some cases in which the alien may never receive notice, and yet the proceedings still meet the requirements of due process. While the notices that Dobrota did receive warned of the importance of keeping one’s address on file with the INS up-to-date, they also indicated that all notices would be mailed to the attorney as well. The Ninth Circuit found that, given that the initial deportation notice was mailed to the attorney, Dobrota could reasonably rely on the INS to send any hearing notice to the attorney as well. Therefore, the court found, the Board erroneously found the way in which Dobrota was notified of his hearing was satisfactory and remanded the case for further proceedings.
The opinion is available online here.
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