923 F2d 863 Singh-Dhangu v. Immigration & Naturalization Service

923 F.2d 863

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Nirmal SINGH-DHANGU, Petitioner,
v.
IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 90-70034.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 11, 1991.*
Decided Jan. 15, 1991.

Before HUG, POOLE and NOONAN, Circuit Judges.

1

MEMORANDUM**

2

Nirmal Singh-Dhangu ("Dhangu"), a native and citizen of India, petitions for review of the Board of Immigration Appeals' ("BIA") order upholding an immigration judge's ("IJ") denial of Dhangu's motion to reopen. We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a and deny Dhangu's petition for review.

3

* Background

4

In June 1982, Dhangu was issued a order to show cause why he should not be deported for entering the United States without inspection pursuant to section 241(a)(2) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. Sec. 1251(a)(2). Dhangu retained an attorney who filed a Form G-28 Notice of Appearance on Dhangu's behalf with the Executive Office for Immigration Review ("EOIR"). At the initial deportation hearing, Dhangu conceded deportability and was granted a continuance in order to apply for asylum. Dhangu filed his asylum application in August 1982.

5

In July 1985, the EOIR notified Dhangu's counsel and attorney of record that a hearing on Dhangu's application for asylum had been scheduled for August 12, 1985. The EOIR did not attempt to directly notify Dhangu of the scheduled hearing. Dhangu's attorney, however, sent the notice to Dhangu's address. Dhangu, unfortunately, had not contacted his attorney since 1982 and had moved numerous times. Consequently, Dhangu did not receive notification of the hearing although he contends the Immigration and Naturalization Service ("INS") had his current address.

6

When neither Dhangu nor his attorney of record appeared at the scheduled deportation hearing, the IJ held the deportation hearing in absentia, as permitted under 8 U.S.C. Sec. 1252(b). The IJ denied Dhangu's request for asylum and withholding of deportation or, in the alternative, for voluntary departure, and order him deported.

7

In October 1985, the INS notified Dhangu of the IJ's deportation order. Dhangu obtained new counsel and sought to reopen his case contending that he was unaware of the scheduled hearing and should have been directly notified of the hearing by the EOIR. Dhangu argued that 8 C.F.R. Sec. 292.5, which allows the EOIR to notify only the alien's attorney or representative of record, violated his due process rights under the fifth amendment of the United States Constitution and section 242(b) of the INA, 8 U.S.C. Sec. 1252(b).

8

The BIA upheld the IJ's denial of his motion to reopen on the ground that Dhangu failed to establish reasonable cause for his failure to appear at his deportation hearing. Dhangu timely petitions for review.

II

Merits

9

Dhangu contends that he was denied due process when the EOIR served notice of his deportation hearing on his attorney of record but did not attempt to serve notice on him directly.1 This contention lacks merit.

10

First, it is undisputed that deportation proceedings must meet the minimum requirements of constitutional due process. See United States v. Barraza-Leon, 575 F.2d 218, 220 (9th Cir.1978); see also Bridges v. Wixon, 326 U.S. 135, 154 (1945). It is well established, however, that a deportation proceeding is a civil proceeding in which the alien is not entitled to all the constitutional safeguards available to a criminal defendant. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984); Baires v. INS, 856 F.2d 89, 90 (9th Cir.1988). Minimum requirements for constitutional due process include reasonable notice and an opportunity to be heard. See generally Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950) (due process in a civil proceeding requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity" to be heard).

11

In section 242(b) of the INA, Congress codified these minimum requirements for due process in deportation proceedings. See 8 U.S.C. Sec. 1252(b). Section 242(b) requires that the "alien shall have reasonable opportunity to be present [at the deportation proceeding]." Id. Section 242(b)(1) specifically provides that "the alien shall be given notice, reasonable under all the circumstances, ... of the time and place at which the proceedings will be held." Id.

12

Section 292.5 of Title 8 of the Code of Federal Regulations, however, provides that "[w]henever a person is required by [the INA to] ... be given notice ... such notice ... shall be given [to] ... the attorney or representative of record, or the person himself if unrepresented." 8 C.F.R. Sec. 292.5.

13

Here, the EOIR complied with 8 C.F.R. Sec. 292.5 by notifying Dhangu's attorney of record of the scheduled deportation hearing. Thus, the issue is whether this notice procedure is reasonable under the circumstances. See Mullane, 339 U.S. at 314-15.

14

Generally, in civil proceedings, service of notice on a party's attorney of record will satisfy due process. In "our system of representative ligitation ... each party is deemed bound by the acts of his lawyer-agent and is considered to have 'notice of all facts, notice of which can be charged upon the attorney.' " Link v. Wabash R.R., 370 U.S. 626, 634 (1962) (quoting Smith v. Ayer, 101 U.S. 320, 326 (1880)); see also NLRB v. Sequoia Dist. Council of Carpenters, 568 F.2d 628, 633 (9th Cir.1977) (service of judgment on union's attorney gave union sufficient notice to bind it to the terms of the judgment). Moreover, even a "criminal defendant represented by counsel at trial receives constitutionally adequate notice when his trial counsel receives actual notice." United States v. Everett, 700 F.2d 900, 902 n. 5 (3rd Cir.1983).

15

In addition, other circuits have recognized that notice to the attorney of record in a deportation proceeding is reasonable notice to the alien. See, e.g., Sewak v. INS, 900 F.2d 667, 670 n. 6 & 673 (3rd Cir.1990) (in dictum, the court stated that if the alien's duly appointed attorney received notice of the hearing, then the alien's "argument that he lacked notice of the hearing would fail"); Reyes-Arias v. INS, 866 F.2d 500, 502-03 (D.C.Cir.1989) (IJ ordered alien deported in absentia after alien failed to appear at the deportation hearing; alien's counsel received notice and appeared but alien "elected, perhaps entirely through ignorance and misunderstanding, to remain out of touch with his own counsel" and did not appear at the hearing; court rejected alien's contention that due process required "actual knowledge [of the scheduled hearing] by the asylum claimant, rather than actual knowledge by the claimant's counsel").

16

Here, Dhangu does not contend that his counsel, Mohinder Singh, was not his attorney of record or that notice was not sent properly sent to Singh who apparently unsuccessfully tried to forward it to Dhangu. Compare Sewak, 900 F.2d at 670 (court stated that if the person listed as the alien's attorney of record was not authorized by the alien to enter an appearance on the alien's behalf and did not relay the notice to the alien, then notice would be improper). Under the circumstances of this case, therefore, we find that Dhangu received adequate notice of the hearing.2

17

PETITION FOR REVIEW DENIED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Dhangu's request for oral argument is denied

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Dhangu originally raised this issue in Dhangu v. INS, 812 F.2d 455 (9th Cir.1987). In that case, we denied Dhangu's petition for review because he had not exhausted his administrative remedies by filing a motion to reopen. See id. at 460-61; see also 8 C.F.R. Secs. 3.22(b), 103.5(a) & 2422.22. Because Dhangu's motion to reopen has been denied, the issue is now properly before us

2

Because we find that the EOIR's notification of Dhangu's attorney of record constitutes reasonable notice under the circumstances, we need not address the issues of whether the INS had Dhangu's current address or whether it was obliged to notify the EOIR of that address