G-Y-R

Cite as 23 I&N Dec. 181 (BIA 2001) Interim Decision #3458

In re G-Y-R-, Respondent

Decided October 19, 2001

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) When an alien fails to appear at removal proceedings for which notice of the hearing was

served by mail, an in absentia order may only be entered where the alien has received, or

can be charged with receiving, a Notice to Appear (Form I-862) informing the alien of the

statutory address obligations associated with removal proceedings and of the consequences

of failing to provide a current address, pursuant to section 239(a)(1)(F) of the Immigration

and Nationality Act, 8 U.S.C. § 1229(a)(1)(F) (Supp. V 1999).

(2) Entry of an in absentia order of removal is inappropriate where the record reflects

that the alien did not receive, or could not be charged with receiving, the Notice to Appear

that was served by certified mail at an address obtained from documents filed with the

Immigration and Naturalization Service several years earlier.

Pro se

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Kimberley Joy Shepherd,

Assistant District Counsel

BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman;

SCHMIDT, HOLMES, HURWITZ, VILLAGELIU, FILPPU,

GUENDELSBERGER, MATHON, ROSENBERG, GRANT, MOSCATO,

MILLER, BRENNAN, ESPENOZA, OSUNA, and OHLSON, Board Members.

Dissenting Opinion: JONES, Board Member, joined by COLE, Board Member.1

FILPPU, Board Member:

The Immigration and Naturalization Service appeals from the

September 30, 1997, decision of the Immigration Judge to terminate

proceedings. The appeal will be dismissed.

1

Board Members Frederick D. Hess and Roger Pauley did not participate in the decision in

this case.

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I. BACKGROUND

The respondent, a native and citizen of El Salvador, entered the United States

without inspection on March 21, 1982, and 2 months later filed a Request for

Asylum in the United States (Form I-589) with the Service.2 On June 22, 1991,

the respondent submitted an Alien Address Report Card (Form I-104), updating

her address with the Service.

On an undisclosed date in 1997, the Service mailed an appointment notice to

the respondent for an asylum interview on July 2, 1997. That notice was mailed

to the address provided by the respondent in 1991, but we do not know whether

she actually received it. The respondent did not appear for her scheduled

interview.

On July 7, 1997, the Service sent to the respondent, by certified mail to that

same address, a Notice to Appear (Form I-862) for a removal hearing scheduled

for September 30, 1997. We understand from the Service’s brief that the

respondent did not receive the Notice to Appear because it was returned to the

Service by the Postal Service.

When the respondent did not appear for her hearing, the Service moved to

proceed with the hearing in absentia. The Immigration Judge offered to

administratively close proceedings to allow the Service time to serve the

respondent again, but the Service elected to proceed on the record. Noting the

long delay by the Service in acting upon the respondent’s asylum application, the

Immigration Judge was not satisfied that the respondent was aware of the

removal proceedings, “thereby initiating the requirement that she keep the Court

and Service informed of an address or bear the consequences for failure to do

so.” The Immigration Judge terminated proceedings without prejudice. The

Immigration Judge’s order was thereafter sent by certified mail to the same

address as that on the Notice to Appear, and that mailing was returned to the

Immigration Court with the annotation “Moved Left No Address.”

On appeal, the Service contends that the Immigration Judge should not have

terminated proceedings but should have instead ordered the respondent removed

in absentia. The Service argues that proper notice of proceedings was effected

through “attempted delivery to the last address provided by the alien” pursuant

to section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)

(Supp. V 1999). The Service also asserts that section 265 of the Act, 8 U.S.C.

§ 1305 (1994), places an affirmative duty on the respondent to keep the

2

On appeal, the Service states that the respondent became a class member under American

Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991), and registered for

benefits pursuant to the settlement agreement in that case. We note, too, that the respondent

is the beneficiary of a visa petition that was filed by her husband and approved by the

Service on December 26, 1990.

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Attorney General apprised of her whereabouts or face certain consequences

under section 266 of the Act, 8 U.S.C. § 1306 (1994 & Supp. V 1999).

The respondent has not replied to the Service’s appeal. It appears that she is

unaware of these proceedings.

Thus, in this case, we know that the Notice to Appear was not personally

served on the respondent but was sent to her by certified mail. We also know

that the respondent did not receive the Notice to Appear because the certified

mailing was returned. Further, we know that the respondent did not receive any

notice of the hearing because the Notice to Appear contained her first and only

notice of the date, time, and place of her removal hearing.

II. ISSUE

The issue is whether an Immigration Judge may order an alien removed in

absentia when the Service mails the Notice to Appear to the last address it has

for an alien, but the record reflects that the alien did not receive the Notice to

Appear, and the notice of hearing it contains, and therefore has never been

notified of the initiation of removal proceedings or the alien’s address

obligations under section 239(a)(1) of the Act.

This question can best be answered by a careful reading of the pertinent

statutory provisions—specifically, sections 239(a) and (c) and 240(b)(5) of the

Act, 8 U.S.C. §§ 1229(a) and (c) and 1229a(b)(5) (Supp. V 1999). We

understand these interrelated provisions collectively to preclude the entry of an

in absentia order of removal when the alien has not received the Notice to

Appear and thus does not know of the particular address obligations associated

with removal proceedings.

III. THE NOTICE TO APPEAR

A. Initiation of Proceedings

Removal proceedings are initiated when an alien is provided notice of

proceedings through the service of a Notice to Appear. Section 239(a)(1) of the

Act. The contents of the Notice to Appear are carefully prescribed in section

239(a)(1) of the Act, which provides as follows:

In removal proceedings under section 240, written notice (in this section referred to

as a “notice to appear”) shall be given in person to the alien (or, if personal service is not

practicable, through service by mail to the alien or to the alien’s counsel of record, if any)

specifying the following:

(A) The nature of the proceedings against the alien.

(B) The legal authority under which the proceedings are conducted.

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(C) The acts or conduct alleged to be in violation of law.

(D) The charges against the alien and the statutory provisions alleged to have been

violated.

(E) The alien may be represented by counsel and the alien will be provided (i) a

period of time to secure counsel under subsection (b)(1) of this section and (ii) a current

list of counsel prepared under subsection (b)(2) of this section.

(F) (i) The requirement that the alien must immediately provide (or have

provided) the Attorney General with a written record of an address and telephone

number (if any) at which the alien may be contacted respecting proceedings under

section 240.

(ii) The requirement that the alien must provide the Attorney General

immediately with a written record of any change of the alien’s address or

telephone number.

(iii) The consequences under section 240(b)(5) of failure to provide

address and telephone information pursuant to this subparagraph.

(G) (i) The time and place at which the proceedings will be held.

(ii) The consequences under section 240(b)(5) of the failure, except under

exceptional circumstances, to appear at such proceedings. (Emphasis added.)

Thus, as indicated by subparagraph (F)(i), the Notice to Appear apprises the

alien that he or she has a particular address obligation respecting removal

proceedings: the necessity of providing an address “at which the alien may be

contacted respecting proceedings under section 240.” As indicated by

subparagraph (F)(iii), the Notice to Appear also warns the alien of the potential

for an in absentia order if the alien fails to provide address information as

instructed by the Notice to Appear—i.e., “[t]he consequences under section

240(b)(5) [the in absentia provisions] of failure to provide address and

telephone information pursuant to this subparagraph.”

B. Means of Service

The alien must be properly served with the Notice to Appear before the

particular address obligations of removal proceedings are fixed and the

Immigration Judge is authorized to proceed in absentia. In the past, proceedings

could be initiated by a notice of proceedings that was personally served on the

alien or was sent by certified mail. See section 242B(a)(1) of the Act, 8 U.S.C.

§ 1252b(a)(1) (1994). In fact, notice was deemed sufficient if the alien could

be charged with having received the certified mailing. See Matter of Grijalva,

21 I&N Dec. 27, 32 (BIA 1995) (allowing an alien to be charged with receipt

when the certified mail receipt has been signed “‘by the respondent or a

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responsible person at the respondent’s address’” (quoting Matter of Huete,

20 I&N Dec. 250, 253 (BIA 1991))). The certified mail requirement has been

removed, and the statute now simply permits “service by mail” if personal

service is “not practicable.” Section 239(a)(1) of the Act.

However, if the alien does not actually receive the mailing, as is the case

before us, the statute specifies that the sufficiency of service will depend on

whether there is “proof of attempted delivery to the last address provided by the

alien in accordance with subsection (a)(1)(F).” Section 239(c) of the Act

(emphasis added). Thus, in cases where the alien does not get the mailing, only

the use of an address that satisfies section 239(a)(1)(F) of the Act will suffice

for the initiation of proceedings.

C. In Absentia Proceedings

If an alien fails to appear after he or she has received a notice of

hearing—whether it is the notice of hearing contained in the Notice to Appear

or a subsequent hearing notice—the Immigration Judge may proceed in absentia.

The specific authorization for doing so is found in section 240(b)(5) of the Act,

which provides as follows:

CONSEQUENCES OF FAILURE TO APPEAR. —

(A) IN GENERAL.—Any alien who, after written notice required under

paragraph (1) or (2) of section 239(a) has been provided to the alien or the alien’s

counsel of record, does not attend a proceeding under this section, shall be ordered

removed in absentia if the Service establishes by clear, unequivocal, and convincing

evidence that the written notice was so provided and that the alien is removable (as

defined in subsection (e)(2) of this section). The written notice by the Attorney

General shall be considered sufficient for purposes of this subparagraph if provided

at the most recent address provided under section 239(a)(1)(F).

(B) NO NOTICE IF FAILURE TO PROVIDE ADDRESS

INFORMATION.—No written notice shall be required under subparagraph (A) if

the alien has failed to provide the address required under section

239(a)(1)(F). (Emphasis added.)

Thus, in cases where the hearing notice is sent by mail, the entry of an in

absentia order is authorized when the alien has been given written notice of the

removal hearing “at the most recent address provided under section

239(a)(1)(F).” Section 240(b)(5) of the Act.

Therefore, the critical question for in absentia cases involving mailed notice

is whether the notice is mailed to an address that qualifies as an “address

provided under section 239(a)(1)(F).” If an address does not, then the

Immigration Judge may not enter an in absentia order of removal because the

statutory notice requirement has not been satisfied.

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IV. A “SECTION 239(a)(1)(F)” ADDRESS

In this instance, the Service sent the respondent’s Notice to Appear by

certified mail to the most recent address it had on file—an address that she

provided on a change of address form in 1991, 6 years before the Service

attempted to place her in proceedings. The Service has offered proof that it

attempted to deliver the Notice to Appear to that address.

The question is whether the address used by the Service to mail the Notice

to Appear and notice of hearing equates to “the last address provided by the alien

in accordance with subsection (a)(1)(F),” as required for the initiation of

proceedings under section 239(c) of the Act, or “the most recent address

provided under section 239(a)(1)(F),” as required for the entry of an in absentia

removal order under section 240(b)(5)(A) of the Act. The sufficiency of notice

therefore rests squarely on what constitutes a section 239(a)(1)(F) address.

A. Actual Notice and Section 239(a)(1)(F)

Due process requires that the alien be provided with notice of proceedings

and an opportunity to be heard. Landon v. Plasencia, 459 U.S. 21, 32-33

(1982); Bridges v. Wixon, 326 U.S. 135, 154 (1945); Kaoru Yamataya v.

Fisher, 189 U.S. 86, 101 (1903). It is therefore critical that notice be

reasonably calculated to apprise the alien of his or her scheduled hearing and the

immigration charges levied by the Service. See Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306, 314 (1950).

As a general matter, actual notice will always suffice. See, e.g., Matter of

Pence, 905 F.2d 1107, 1109 (7th Cir.1990). Consequently, if an alien actually

receives a Notice to Appear that is mailed to a section 239(a)(1) address, such

as an address from any form filed with the Service, the alien will be put on actual

notice of the proceedings, including notice of the obligation to keep the

Attorney General informed of any address changes and of the in absentia

consequences for failing to do so. Thus, an address taken from an asylum

application or a change of address form that accomplishes actual delivery of the

Notice to Appear qualifies as a “section 239(a)(1)(F)” address because the alien

will actually be informed of the initiation of removal proceedings and the rights

and obligations that attach. In the terms of the statute, the alien will “have

provided” an address at which he or she can be “contacted respecting

proceedings” if any earlier provided address was effective for receiving the

Notice to Appear and the alien has not provided any written record of an address

change. Section 239(a)(1)(F)(i) of the Act.

B. Constructive Notice and Section 239(a)(1)(F)

This case, however, does not involve actual notice of proceedings. Rather,

it involves constructive notice in the form of undelivered written notice. The

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sufficiency of constructive notice depends on whether the notice comports with

the requirements of the applicable statute and the expectations of due process.

See generally Mullane v. Central Hanvover Bank & Trust Co., supra; San

Augustine County, Tex. v. Cameron County Water Imp. Dist. No. 10, 202 F.2d

932, 934 (5th Cir. 1953).

The statute allows a hearing to be conducted in absentia, but only when the

alien was sent written notice “at the most recent address provided under section

239(a)(1)(F).” Section 240(b)(5)(A) of the Act. The literal language of this

provision requires that the address be one provided both by the alien and “under

section 239(a)(1)(F).”3 Id. As we understand the in absentia provisions in

section 240(b)(5)(A), when read in light of section 239(a)(1)(F) itself, the alien

cannot provide a “section 239(a)(1)(F)” address (or “have provided” it and

therefore not need to change it) unless the alien has been advised to do so.

In this regard, it is section 239(a)(1)(F) itself that requires the Notice to

Appear to inform the alien of the particular address obligations associated with

removal proceedings. Section 239(a)(1)(F)(i) of the Act. Section 239(a)(1)(F)

mandates that the Notice to Appear also inform the alien of the in absentia

consequences of failing to comply with those address requirements. Section

239(a)(1)(F)(iii) of the Act. Together, these provisions lead to the conclusion

that an address does not become a section 239(a)(1)(F) address unless the alien

receives the warnings and advisals contained in the Notice to Appear. This

conclusion is reinforced by the parallel language of section 239(c), which

permits service by mail when the address used is “provided by the alien in

accordance with subsection (a)(1)(F).” Section 239(c) of the Act. Simply put,

an alien cannot be expected to provide an address “under” or “in accordance

with” section 239(a)(1)(F) until the alien has been informed of the particular

address obligations contained in section 239(a)(1)(F) itself.

Accordingly, we find that an address can be a section 239(a)(1)(F) address

only if the alien has first been informed of the particular statutory address

obligations associated with removal proceedings and of the consequences of

failing to provide a current address. Because that information is first

communicated in the Notice to Appear, the alien must receive the Notice to

Appear before he or she can “provide” an address in accordance with section

239(a)(1)(F) of the Act. In cases where the Service uses the mail to deliver the

Notice to Appear to the alien, the “last address” or the “most recent address”

3

We look to the precise language of the statute to construe its meaning. See Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). We

do not deem it necessary to resort to legislative history, but note nonetheless that the

legislative history behind sections 239 and 240 of the Act does not provide meaningful

guidance here because the explanatory material simply paraphrases the language that

appears in the statute today. See H.R. Conf. Rep. No. 104-828 (1996), available in 1996

WL 563320; H.R. Rep. No. 104-469(I) (1996), available in 1996 WL 168955.

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provided by the alien “in accordance with subsection (a)(1)(F)” will necessarily

be an address arising from the alien’s receipt of the advisals contained in the

Notice to Appear.

Once the advisals in the Notice to Appear are conveyed, serious

consequences attach to an in absentia order of removal, and the avenues for

relief are extremely limited. See section 240(b)(7) of the Act. Once

proceedings have commenced, the alien must attend all scheduled hearings

before the Immigration Judge, unless excused by the Immigration Judge.

See 8 C.F.R. § 3.25(a) (2001). If the alien fails to appear for a scheduled

hearing, the Immigration Judge may proceed with the hearing in the alien’s

absence and order the alien removed in absentia. Accordingly, the statutory

notice requirements are precise and require assiduous attention. See United

States v. Perez-Valdera, 899 F. Supp. 181, 185 (S.D.N.Y. 1995) (noting that

Congress strengthened the notice requirements in recognition of the severity

of the consequences of an in absentia order). In fact, special allowances are

made when an alien has a meritorious challenge to the adequacy of notice. See

section 240(b)(5)(C) of the Act (exempting motions to reopen from the

180-day time limit when contesting an in absentia removal order on notice

grounds).4

C. Section 239(a)(1)(F) in This Instance

In this instance, the Notice to Appear never reached the respondent, and the

advisals were never conveyed. The Service argues that the failure of the Notice

to Appear to reach the respondent does not mean the respondent lacked proper

notice of proceedings. Rather, the Service maintains that the mailing of the

Notice to Appear to the last address provided by the alien satisfies the statutory

notice requirements. Moreover, it argues that the alien should be held

accountable for the mail not reaching her because she was aware of her address

obligations vis-à-vis the Service and, by implication, invited defective notice of

proceedings when she failed to keep her address information current.

However, a section 239(a)(1)(F) address is an address where an alien can be

“contacted respecting proceedings under section 240.” Section 239(a)(1)(F)(i)

of the Act. The Notice to Appear concerns the alien’s particular address

obligations regarding removal proceedings. Unless the respondent is chargeable

with having received the Notice to Appear and any notice of hearing contained

4

The dissent identifies potential abuses that could arise under the statute. But the dissent

never explains how an address can be an address provided “under” or “in accordance with”

section 239(a)(1)(F) of the Act when that address was only given to the Service years in

advance of removal proceedings; nor does the dissent attempt to reconcile all of the relevant

statutory provisions at issue here.

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therein, she has not been placed on notice of proceedings or on notice of the

date, time, and location of the removal hearing.

As we read the statute, its intent is to accomplish actual notice. In those

instances where actual notice is not accomplished, the statute will permit

constructive notice when the alien is aware of the particular address obligations

of removal proceedings and then fails to provide an address for receiving

notices of hearing. Under the Service’s reading of the statute, however, no

attempt at actual notice is ever necessary. The alien’s address need not be

current or even extant; it may even predate the legislative developments that

created today’s in absentia consequences. In other words, according to the

Service, the notice requirements of the Act are satisfied whenever the Service

uses the alien’s last known address—no matter how old, incomplete, or

obviously inadequate that address may be.

We do not agree. Simply mailing the Notice to Appear to an address

authorized under section 239(a)(1) does not automatically convert the alien’s

last known address into a section 239(a)(1)(F) address. While the statute may

permit the regular mailing of the Notice to Appear to the last known address, the

“(a)(1)” address so to speak, the statute does not authorize the entry of an in

absentia order unless the advisals in the Notice to Appear are properly conveyed,

at which time the address will have become an “(a)(1)(F)” address. In short, the

notice requirement leading to an in absentia order cannot be satisfied by mailing

the Notice to Appear to the last known address of the alien when the alien does

not receive the mailing. Again, the “last address” or the “most recent address”

provided by the alien “in accordance with” or “under” subsection (a)(1)(F) must

be an address consequent to the alien’s being put on notice of the particular

address obligations contained in the Notice to Appear.

This does not mean, of course, that the alien must personally receive, read,

and understand the Notice to Appear for the notice requirements to be satisfied.

An alien can, in certain circumstances, be properly charged with receiving

notice, even though he or she did not personally see the mailed document. If,

for example, the Notice to Appear reaches the correct address but does not

reach the alien through some failure in the internal workings of the household,

the alien can be charged with receiving proper notice, and proper service will

have been effected. See Matter of Grijalva, supra; Matter of Huete, supra.

However, if we know that the Notice to Appear did not reach the alien and that

the alien cannot be properly charged with receiving it, then the mailing address

does not qualify as a “section 239(a)(1)(F)” address. In turn, if the mailing

address does not qualify as a section 239(a)(1)(F) address, then an in absentia

order predicated on mailed notice to that address may not ensue.

In summary, the Service may either serve the Notice to Appear and its notice

of hearing by personal service or by mail. When the Service elects to serve by

mail, the statute permits the Notice to Appear to be mailed to the last address

the Service has on file for the alien. If the alien actually receives or can be

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charged with receiving that mailed notice, then the address used by the Service

qualifies as a section 239(a)(1)(F) address, and in absentia proceedings are

thereafter authorized. If, however, we know that the alien did not receive the

Notice to Appear and the notice of hearing it contains, then the alien cannot be

on notice of either removal proceedings or the address obligations particular to

removal proceedings. In that instance, the address used by the Service cannot

qualify as a section 239(a)(1)(F) address, and the entry of an in absentia order

is precluded. Thus, we find that when the pertinent provisions are read together,

the statute requires that the alien receive (or be charged with receiving) the

Notice to Appear containing the notice of hearing before an in absentia order

of removal may be entered.

V. REGISTRATION

The Service correctly points out that the respondent has an obligation to

provide the Service with a current address pursuant to the registration

requirements of the Act. Virtually every alien in the United States is under an

affirmative obligation to report address changes to the Attorney General,

regardless of immigration status or circumstances. Section 265(a) of the Act.

All aliens who remain in the United States for more than 30 days have a duty to

register with the Attorney General, unless they have been expressly exempted

from the requirement. Section 262 of the Act, 8 U.S.C. § 1302 (1994). If

registered, the alien has a duty to keep the Attorney General apprised of any

address changes. Section 265(a) of the Act. The only aliens who are usually

exempt from registration are nonimmigrant representatives of foreign countries

and the staff of international organizations. See section 221(b) of the Act,

8 U.S.C. § 1201(b) (1994).

The statutory consequences of failing to report an address change as required

by section 265(a) include a possible misdemeanor conviction, with a potential

fine of up to $200 and not more than 30 days’ imprisonment, and placement into

removal proceedings pursuant to chapter 4 of Title 8 of the United States Code.

See section 266(b) of the Act. These penalties are not imposed, however, if the

alien can demonstrate that the failure to keep his or her address current “was

reasonably excusable or was not willful.” Id.; see also section 237(a)(3)(A) of

the Act, 8 U.S.C. § 1227(a)(3)(A) (Supp. V 1999).

Although the failure to comply with section 265 and its surrounding

provisions may incur various penalties, the entry of an in absentia order of

removal is not one of them. In absentia orders arise from, and are governed by,

section 240(b)(5) of the Act. It is that provision, not any of the registration

provisions, that contains the requirements and the legal authority for the entry

of an in absentia order of removal. We therefore find that the registration

provisions do not authorize the issuance of an in absentia order of removal as

a consequence of their violation.

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VI. REGULATORY ADDRESS OBLIGATIONS

Finally, we observe that the regulations are consistent with our reading of the

statute.

The regulations at 8 C.F.R. § 3.15 (2001) require that the Notice to Appear

provide as follows:

A statement that the alien must advise the Immigration Court having administrative

control over the Record of Proceeding of his or her current address and telephone

number and a statement that failure to provide such information may result in an in

absentia hearing in accordance with § 3.26.

8 C.F.R. § 3.15(b)(7). That regulation also specifies the alien’s address

obligations to the Immigration Court as follows:

If the alien’s address is not provided on the Order to Show Cause or Notice to Appear,

or if the address on the Order to Show Cause or Notice to Appear is incorrect, the alien

must provide to the Immigration Court where the charging document has been filed,

within five days of service of that document, a written notice of an address and

telephone number at which the alien can be contacted.

8 C.F.R. § 3.15(d)(1). In turn, 8 C.F.R. § 3.26 (2001), which pertains to in

absentia proceedings, specifically provides that an Immigration Judge may enter

an in absentia order in removal proceedings when the following conditions are

satisfied:

The Service establishes by clear, unequivocal, and convincing evidence that written

notice of the time and place of proceedings and written notice of the consequences of

failure to appear were provided to the alien or the alien’s counsel of record.

8 C.F.R. § 3.26(c)(2). The regulations further provide as follows:

Written notice to the alien shall be considered sufficient for purposes of this section if

it was provided at the most recent address provided by the alien. If the respondent fails

to provide his or her address as required under § 3.15(d), no written notice shall be

required for an Immigration Judge to proceed with an in absentia hearing.

8 C.F.R. § 3.26(d).

We understand the regulations to derive from and to track the language of the

statute. See Inspection and Expedited Removal of Aliens; Detention and

Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures,

62 Fed. Reg. 10,312, 10,322 (1997) (noting that the regulations pertaining to

section 240 of the Act “follow exactly the requirements of the Act”). We find

the regulations to be consistent with the statute and our reading of it. Thus, the

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regulations, like the Act, do not authorize the entry of an in absentia removal

order unless the alien is properly charged with having received notice at an

address that qualifies as a section 239(a)(1)(F) address.

VII. CONCLUSION

In this case, the Notice to Appear was mailed to an address that was provided

before the respondent was placed in removal proceedings, before she was

apprised of the particular address obligations pertaining to removal proceedings,

and before she was advised of the charges against her or the in absentia

consequences of failing to keep her address information current for removal

hearing purposes. The record clearly reflects that the Notice to Appear never

reached the respondent. We therefore know that she did not receive the advisals

contained therein.

Based on the pertinent statutory provisions, we find that an Immigration

Judge may not order an alien removed in absentia when the Service mails the

Notice to Appear to the last address it has on file for an alien, but the record

reflects that the alien did not receive the Notice to Appear, and the notice of

hearing it contains, and therefore has never been notified of the initiation of

removal proceedings or the alien’s address obligations under section 239(a)(1)

of the Act. Because, in this instance, the Service did not establish that the

respondent received or can be charged with receiving that notice, the

Immigration Judge could not have proceeded in absentia. It was therefore

proper for the Immigration Judge to terminate proceedings.

ORDER: The appeal of the Immigration and Naturalization Service is

dismissed.

DISSENTING OPINION: Philemina McNeill Jones, Board Member, in

which Patricia A. Cole, Board Member, joined

I respectfully dissent.

I find problems in both the majority’s interpretation and its implementation

of the notice provisions in the Immigration and Nationality Act. For the reasons

set forth below, I would sustain the Immigration and Naturalization Service’s

appeal and remand proceedings to the Immigration Judge for the entry of an in

absentia order of removal.

According to the majority, sections 239(a)(1)(F) and 240(b)(5) of the Act,

8 U.S.C. §§ 1229(a)(1)(F) and 1229a(b)(5) (Supp. V 1999), permit the Service

to mail the Notice to Appear (Form I-862) to the alien’s last known address.

However, that address may be inadequate for the Immigration Judge to proceed

with removal proceedings in absentia. I disagree with this reading of the statute.

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It is well established that we must “‘give effect, if possible, to every clause

and word of a statute.’” United States v. Menasche, 348 U.S. 528, 538-39

(1955) (quoting Inhabitants of Montclair Township v. Ramsdell, 107 U.S. 147,

152 (1883)); see also Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 209

(1997) (stating that a statute “must be interpreted, if possible, to give each word

some operative effect”); Market Co. v. Hoffman, 101 U.S. 112, 115-16 (1879)

(opining that, to the degree possible, no clause, sentence, or word in a statute

should be construed as superfluous, void, or insignificant). In this instance, the

Act provides the following:

In removal proceedings under section 240, written notice (in this section referred to as

a “notice to appear”) shall be given in person to the alien (or, if personal service is not

practicable, through service by mail to the alien or to the alien’s counsel of record, if

any) . . . .

Section 239(a)(1) of the Act (emphasis added). Because personal service is not

practicable in most cases, the Service is authorized by statute to send the Notice

to Appear by regular mail.

If we accept the majority’s reading of section 239(a)(1), the use of regular

mail is so impractical that it is, in effect, read out of the Act. According to the

majority, the Immigration Judge may proceed in absentia only where the record

reflects that the alien has actually received the Notice to Appear or can be

“charged with” receiving it. However, regular mail can establish neither actual

nor constructive notice because, unlike certified mail or other means of mail

delivery, it does not generate a signed receipt or other evidence of receipt. Cf.

Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995). Thus, in the vast majority of

cases, the only way in which an Immigration Judge will ever know that the alien

received a notice of hearing is if the alien actually appears for the hearing.

Under the majority’s reading of the statute, the Service would be ill-advised

to rely on the regular mail to initiate proceedings. If the Service uses regular

mail, it conveys virtual control over the initiation of proceedings to the alien.

To avoid a removal hearing, the alien need only ignore the Notice to Appear

when it comes in the mail and, should it ever become necessary, simply deny

that it was ever received at his or her address. Alternatively, the alien can simply

change his or her residence and/or not report an address change to the Service,

knowing that he or she is untraceable for purposes of receiving the Notice to

Appear. As the majority has pointed out, few consequences attach for failing to

report address changes to the Service and an alien who wishes to delay or even

elude proceedings can easily do so. I find it completely incongruous to

conclude that Congress intended both to permit and to eviscerate the use of

regular mail to initiate removal proceedings.

Moreover, if regular mail is ineffectual, the statutory notice provisions

become unwieldy. The majority strains to interpret other provisions that

presume regular mail will suffice. In particular, section 239(a)(1)(F) of the Act

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has a requirement “that the alien must immediately provide (or have provided)

the Attorney General with a written record of an address and telephone number

(if any) at which the alien may be contacted respecting proceedings under

section 240.”

The majority’s reading of this language creates a paradox: how can an alien

“have provided” an address to the Immigration Court before he or she has been

told to provide one? The only way the alien can provide an address to the

Immigration Court prior to proceedings is by providing an address to the

Service, with the Service in turn providing it to the Immigration Court via the

Notice to Appear. The majority’s post facto validation of the address on the

Notice to Appear is a forced and impractical reading of the statute, especially

when the language of section 239(c) of the Act specifies that attempted delivery

by regular mail to the alien’s last known address is sufficient notice.

I find that the statute permits—even intends—that removal proceedings be

initiated through the mailing of a Notice to Appear by regular mail. Once the

Service mails the Notice to Appear to the “most recent address” provided by the

alien, under section 239(a)(1)(F) of the Act, an Immigration Judge can order an

alien removed in absentia. Section 240(b)(5) of the Act; cf. 8 C.F.R.

§§ 3.26(c)(2), (d) (2001). If the last address provided by the alien is inadequate,

it is incumbent on the alien to provide a better one or forfeit the right to notice.

Section 240(b)(5)(B) of the Act.

If the Service cannot rely on the last address provided by the alien, then the

in absentia provisions of the Act are applicable only to those cases in which the

alien shows up for the hearing or otherwise concedes receipt of the Notice to

Appear. Narrowly applying the in absentia provisions to this class of cases

undermines the very efficacy of those provisions. In fact, the majority here

places the Service in the untenable position of relying on an address that, almost

by definition, is not reliable. In the end, the Service will have no choice but to

resort to certified mail, a requirement that Congress purposefully removed from

the statute. See the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996, Division C of Pub. L. No. 104-208, § 304, 110 Stat. 3009-546,

3009-587.

Ultimately, the majority’s decision undermines the enforceability of the

Act’s in absentia provisions. I find the majority’s holding to be at odds with the

plain language of the statute and incompatible with any effort to create an

effective immigration court system.

Accordingly, I would sustain the Service’s appeal.

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