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holding that the alien failed to show fundamental unfairness where "the government followed its statutory obligations" by "reasonably attempt[ing] to inform him of the [deportation] hearing" and thus that there was no due process violation
Summary of this case from United States v. Valdivias-SotoOpinion
No. 21-30177
06-17-2024
UNITED STATES of America, Plaintiff-Appellee, v. Leopoldo RIVERA-VALDES, Defendant-Appellant.
Sarah Barr (argued) and Suzanne Miles, Assistant United States Attorneys; Amy E. Potter, Appellate Chief; Scott E. Asphaug, United States Attorney, District of Oregon; United States Department of Justice, Office of the United States Attorney, Portland, Oregon; for Plaintiff-Appellee. Kimberly-Claire E. Seymour (argued), Assistant Federal Public Defender; Eugene, Oregon; for Defendant-Appellant.
Appeal from the United States District Court for the District of Oregon, Karin J. Immergut, District Judge, Presiding, D.C. No. 3:19-cr-00408-IM-1 Sarah Barr (argued) and Suzanne Miles, Assistant United States Attorneys; Amy E. Potter, Appellate Chief; Scott E. Asphaug, United States Attorney, District of Oregon; United States Department of Justice, Office of the United States Attorney, Portland, Oregon; for Plaintiff-Appellee. Kimberly-Claire E. Seymour (argued), Assistant Federal Public Defender; Eugene, Oregon; for Defendant-Appellant. Before: Patrick J. Bumatay and Gabriel P. Sanchez, Circuit Judges, and M. Miller Baker, International Trade Judge. Per Curiam Opinion; Concurrence by Judge Bumatay; Concurrence by Judge Baker; Dissent by Judge Sanchez
The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation.
OPINION
PER CURIAM:
Thirty years ago, Leopoldo Rivera-Valdes failed to appear at his deportation hearing and was ordered deported in absentia. He did not attend this hearing despite being directly given an order to appear and then being sent the date of the hearing by certified mail at the address he provided to immigration officials. In 2006, after being apprehended, he was finally deported.
After being deported, Rivera-Valdes again unlawfully entered the United States. In 2019, he was charged with illegal reentry under 8 U.S.C. § 1326. In the district court, he challenged the indictment, alleging that his 1994 in absentia deportation order violated due process. The district court denied the motion. Rivera-Valdes then entered a conditional guilty plea, preserving the right to appeal the constitutional challenge to his deportation. He now appeals.
Because Rivera-Valdes failed to establish that his deportation violated his due process rights, we affirm.
I.
Rivera-Valdes, a citizen of Mexico, unlawfully entered the United States in 1992. In December 1993, he applied for asylum and work authorization, falsely claiming that he was a citizen of Guatemala. In that application, Rivera-Valdes provided his address as "4037 N. Cleveland, Portland, OR, 97212." In January 1994, the then-Immigration and Naturalization Service sent Rivera-Valdes a notice acknowledging receipt of the asylum application by regular mail to his Portland address.
In two notices, dated February 3 and 8, the INS informed Rivera-Valdes that his application for work authorization was approved and instructed him to pick up the authorization at a local INS office. Again, the INS mailed the notices to the Portland address provided by Rivera-Valdes.
Rivera-Valdes presumably received notice of the work authorization approval because he showed up at the local INS office to pick it up on March 3. There, he presented a false Guatemalan birth certificate as proof of his identity. But his deception was discovered. Immigration officials did not hand Rivera-Valdes the work authorization, instead serving him with an "order to show cause and notice of hearing." The order and notice directed him to appear at deportation proceedings before an immigration judge at a date to be calendared. An immigration official also read the order to Rivera-Valdes in Spanish and he signed the notice, acknowledging its receipt.
The order and notice listed Rivera-Valdes's Portland address and warned him that he was required by law to immediately notify the immigration court within five days of any address change. It stated that "[a]ny notices will be mailed only to the last address provided . . . ." The order and notice further advised him that he would be ordered deported in absentia if he failed to attend his deportation hearing. Rivera-Valdes did not provide the government with any notice of a change of address.
On April 20, the INS moved the immigration court to schedule a hearing and mailed a copy of the motion to Rivera-Valdes at the Portland address. The postal service returned the mail as "Not Deliverable As Addressed/Unable To Forward."
On April 25, the immigration court sent Rivera-Valdes notice that his deportation hearing was scheduled for August 12—this time, the notice was sent by certified mail. The postal service returned this mailing as "unclaimed" a month later.
Rivera-Valdes failed to appear at his August 12 deportation hearing, and the immigration judge ordered him deported in absentia.
II.
A defendant charged with violating § 1326 may collaterally attack his underlying deportation order. See United States v. Martinez, 786 F.3d 1227, 1230 (9th Cir. 2015). To prevail, a defendant must show that (1) he exhausted administrative remedies; (2) the deportation proceedings improperly deprived him of an opportunity for judicial review; and (3) the deportation order was fundamentally unfair. 8 U.S.C. § 1326(d); see also United States v. Palomar-Santiago, 593 U.S. 321, 326, 141 S.Ct. 1615, 209 L.Ed.2d 703 (2021). A deportation order is fundamentally unfair if the defendant's due process rights were violated "by defects in his underlying deportation proceeding," and the defendant suffered prejudice as a result. Martinez, 786 F.3d at 1230.
A.
On appeal, Rivera-Valdes argues that immigration authorities violated his due process rights by ordering him deported in absentia despite the notice of the deportation hearing being returned as undeliverable or unclaimed. We disagree.
At the time of Rivera-Valdes's 1994 deportation, Congress required that each alien receive written notice of deportation proceedings in person or "by certified mail." 8 U.S.C. § 1252b(a)(1), (2) (repealed 1996). That statute specified that the alien "must immediately provide" a contact address and "must provide the Attorney General immediately with a written record of any change of the alien's address." Id. § 1252b(a)(1)(F)(i)-(ii). If the alien failed to provide up-to-date address information, then Congress said that "written notice shall not be required." Id. § 1252b(a)(2). And if the alien failed to attend deportation proceedings after being given notice "at the most recent address provided," Congress commanded that the alien "be ordered deported . . . in absentia" so long as the notice requirements were met. Id. § 1252b(c)(1).
Under this statutory regime, service of a deportation notice by certified mail only created a rebuttable "presumption of proper delivery." Arrieta v. INS, 117 F.3d 429, 431 (9th Cir. 1997). If an alien could "establish that her mailing address has remained unchanged, that neither she nor a responsible party working or residing at that address refused service, and that there was nondelivery or improper delivery by the Postal Service, then she [had] rebutted the presumption of effective service." Id. at 432. The burden then shifted to the government "to show that a responsible party refused service." Id.
More than 25 years ago, we concluded that the government's compliance with these notice provisions satisfied due process, even if the alien did not "actually receive notice of [the] deportation hearing." Farhoud v. INS, 122 F.3d 794, 796 (9th Cir. 1997). In that case, the notice was sent by certified mail to the address provided by the alien and acknowledged by someone at that address. Id. The alien claimed that he "did not actually and personally receive the notice of hearing." Id. That fact did not make a difference because, we said, "due process is satisfied if service is conducted in a manner 'reasonably calculated' to ensure that notice reaches the alien." Id. And the certified mailing was enough to meet this standard. Id.
In the following years, we repeatedly affirmed that mailing notice of immigration proceedings to an alien's last provided address is constitutionally sufficient. See, e.g., Urbina-Osejo v. INS, 124 F.3d 1314, 1317 (9th Cir. 1997) ("Notice of a deportation hearing sent by regular mail to the last address provided by the alien to the INS satisfies the requirements of constitutional due process[.]" (simplified)); United States v. Hinojosa-Perez, 206 F.3d 832, 837 (9th Cir. 2000) (holding that an alien's "attempt to claim prejudice from the failure to send notice to a place where he no longer lived is unpersuasive" given that he was "adequately warned of his responsibility to keep his address current"); Dobrota v. INS, 311 F.3d 1206, 1211 (9th Cir. 2002) (finding that the government satisfies due process "by mailing notice of [a] hearing to an alien at the address last provided").
We held the same in Popa v. Holder, 571 F.3d 890 (9th Cir. 2009), overruled on other grounds by Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019). In that case, the government mailed a notice to appear to the alien's last provided address in Nevada. Id. at 898. The alien then moved to California without informing the government, which later mailed a hearing notice to her Nevada address. Id. As a result, the alien didn't receive the notice and missed her removal proceeding, and an immigration judge ordered her removed in absentia. Id. at 893. None of this posed a due process problem. As we said, an alien "does not have to actually receive notice of a deportation hearing in order for the requirements of due process to be satisfied." Id. at 897. Instead, due process "is satisfied if service is conducted in a manner 'reasonably calculated' to ensure that notice reaches the alien." Id. (quoting Farhoud, 122 F.3d at 796). There, the alien's "right to due process was not violated because the Immigration Court mailed notice of her hearing to [her] last provided address." Id. at 898.
Here, our precedent shows that the government complied with due process. Rivera-Valdes provided the government with his Portland address in his asylum application. The government personally served him with the order and notice that instructed him to inform the government of any change to his address. Not only that, but an immigration official read the order to him. Rivera-Valdes gave no change of address. The government then sent notice of his deportation hearing to his Portland address via certified mail. Whether he actually received the notice, the government followed its statutory obligations and reasonably attempted to inform him of the hearing by mailing notice to his last (and only) provided address. We thus hold that Rivera-Valdes's deportation in absentia did not violate due process.
B.
Despite this clear precedent, Rivera-Valdes argues on appeal that the government should have taken additional steps to notify him of his deportation hearing because, according to him, such steps were required under Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006). In Jones, the Supreme Court considered the due process rights of a homeowner whose house was forcibly sold by the State for failure to pay property taxes. To notify the homeowner, the State sent two notices of the tax sale by certified mail to the house that were returned as "unclaimed." Id. at 223-24, 126 S.Ct. 1708. The State then sold the home. Id. The Court said that these procedures violated due process. In "extinguishing a property owner's interest in a home," id. at 229, 126 S.Ct. 1708, "the State should have taken additional reasonable steps to notify [the homeowner], if practicable to do so," id. at 234, 126 S.Ct. 1708.
Jones does not help Rivera-Valdes for three reasons.
First, we disagree that our court has already adopted Jones's "additional reasonable steps" requirement in the immigration context. While we must, of course, follow the binding precedent of prior panels, see Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc), this applies only when a prior panel "squarely addresses" the issue, United States v. Kirilyuk, 29 F.4th 1128, 1134 (9th Cir. 2022) (simplified). "Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents." United States v. Ped, 943 F.3d 427, 434 (9th Cir. 2019) (simplified). Thus, when a "prior case does not raise or consider the implications of a legal argument, it does not constrain" a new panel's analysis. Kirilyuk, 29 F.4th at 1134 (simplified).
Neither Rivera-Valdes nor the dissent cites any case applying Jones's "additional reasonable steps" framework to the immigration context. The dissent principally relies on Williams v. Mukasey, 531 F.3d 1040, 1042 (9th Cir. 2008), to claim that we applied Jones's broad ruling to immigration proceedings. But in Williams, we cited Jones only once, and we did so only to support the Supreme Court latest's articulation of the well-known Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950), due process standard. The sum total of Williams's invocation of Jones was this:
Under that framework, "due process requires the government to provide 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' " Jones v. Flowers, 547 U.S. 220, 226, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006) (quoting Mullane, 339 U.S. at 314, 70 S.Ct. 652).Williams thus didn't apply Jones's "additional reasonable steps" framework to the immigration context. None of the other precedential cases cited by the dissent apply Jones's "additional reasonable steps" requirement either. See Chaidez v. Gonzales, 486 F.3d 1079, 1086 n.8 (9th Cir. 2007) (declining to address Jones in the context of who is a "responsible person[ ]" for the delivery of certified mail); Al Mutarreb v. Holder, 561 F.3d 1023, 1027-28 (9th Cir. 2009) (mentioning Jones but declining to resolve questions about adequacy of notice in that case by assuming it was sufficient).
Second, we disagree that Jones's "additional step" framework applies here. The notice required by due process "will vary with circumstances and conditions," Jones, 547 U.S. at 227, 126 S.Ct. 1708 (quoting Walker v. City of Hutchinson, 352 U.S. 112, 115, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956)), and "assessing the adequacy of a particular form of notice requires balancing the 'interest of the [government]' against 'the individual interest sought to be protected by the [Due Process Clause]' " in the circumstances at issue, id. at 229, 126 S.Ct. 1708 (quoting Mullane, 339 U.S. at 314, 70 S.Ct. 652). In the immigration context, we've said that "actual notice" is unnecessary and that service must only be " 'reasonably calculated' to ensure that notice reaches the alien." Farhoud, 122 F.3d at 796.
The statutory regime in place at the time of Rivera-Valdes's 1994 deportation hearing was " 'reasonably calculated' to ensure that" Rivera-Valdes received notice. See id. This statutory scheme, which required aliens to update their addresses and permitted aliens to rebut the presumption of service, distinguishes this case from Jones and adequately balances the relevant competing interests in the immigration context.
Indeed, the contexts of Jones and deportation proceedings are quite different. An alien who has unlawfully entered the country has obvious reasons to avoid appearing for a deportation hearing—unlike a property owner, who has no reason to ignore an imminent tax sale. Requiring the government to do more than send notice to the last address provided would reward evasion of service. Thus, by failing to comply with his statutory obligations, Rivera-Valdes "relieve[d] the government of its responsibility to provide" him with any more notice of the hearing. See Popa, 571 F.3d at 897.
We express no view on Jones's application in the immigration context outside of the statutory regime that existed in 1994, at the time of Rivera-Valdes's deportation hearing.
Third, even if Jones's "additional reasonable steps" standard did supersede the constitutional adequacy of notice as recognized in our cases, the government still satisfied due process because no additional reasonable steps existed that were practicable for it to take. Rivera-Valdes was personally served the "order to show cause and notice of hearing" initiating his deportation proceedings, which was also read to him. The order and notice warned Rivera-Valdes that he must update his address and told him that future notices would be sent to him by mail only. The government then sent Rivera-Valdes notice of the deportation hearing by certified mail to the only address he provided. Not only that, the government also used regular mail to send its motion to schedule the hearing. These mailings were returned as "unclaimed" or "not deliverable." See Jones, 547 U.S. at 235, 126 S.Ct. 1708 (explaining that resending by regular mail an unclaimed notice of hearing previously sent by certified mail is a reasonable follow-up measure). The government possessed no other information about Rivera-Valdes's whereabouts. Given this, under Jones, there were no practicable, reasonable steps left for the government to take. Id. at 234, 126 S.Ct. 1708 ("[I]f there were no reasonable additional steps the government could have taken upon return of the unclaimed notice letter, it cannot be faulted for doing nothing.").
The dissent would give Rivera-Valdes another bite at the apple by remanding for the district court to consider whether there were any additional, reasonable steps the government could have taken. Even if we agreed that Jones applied here, we fail to see how a remand could further develop the factual record about events that transpired thirty years ago. Moreover, we note that Rivera-Valdes raised his Jones argument for the first time on appeal, which explains why the district court never considered this issue in the first instance. He can hardly complain about our failure to remand to the district court a question that he never addressed below.
III.
We thus affirm the district court's denial of the motion to dismiss.
AFFIRMED.
BUMATAY, Circuit Judge, concurring:
As the per curiam opinion establishes, this is a straightforward case under our precedent. The government sent notice of the deportation hearing by certified mail to the last address provided by Leopoldo Rivera-Valdes. Case after case says that this satisfies due process and that there's nothing wrong with the in absentia deportation order here. To the extent that our court is bound to use an interest-balancing framework to address whether service of notice passes constitutional muster, see Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950), I join the per curiam opinion. But I write separately to express my concerns with the dissent's attempt to break new constitutional ground to resolve this case.
I.
Due process is context specific. When it comes to immigration, courts have "largely defer[red] to the political branches" on what process is due to aliens in removal proceedings. Rodriguez Diaz v. Garland, 53 F.4th 1189, 1215 (9th Cir. 2022) (Bumatay, J., concurring). That's because "the admission and exclusion of foreign nationals is a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Trump v. Hawaii, 585 U.S. 667, 702, 138 S.Ct. 2392, 201 L.Ed.2d 775 (2018) (simplified). Thus, it's firmly established that "Congress may make rules as to aliens that would be unacceptable if applied to citizens." Demore v. Kim, 538 U.S. 510, 522, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003).
Rather than accept this principle, the dissent pursues a novel ruling—one that would upend how many immigration proceedings operate. Despite the government's compliance with applicable statutory notice requirements, the dissent says that's not enough and now the government must also meet the extra burdens set out in Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006). To my knowledge, no circuit court has ever required this.
It's easy to see why Jones doesn't directly apply to the immigration context. In Jones, the Supreme Court held that due process requires the government to "take additional reasonable steps to provide notice" to a homeowner "before taking the owner's property." Id. at 223, 126 S.Ct. 1708. There, Gary Jones owned a house in Little Rock, Arkansas, for over 30 years. Id. He paid the mortgage on the house for 30 years. Id. For those 30 years, the mortgage company paid Jones's property taxes. Id. But after he finished paying off the mortgage, the property taxes went unpaid. Id. The State declared the property delinquent and sought to sell the home. Id. To notify Jones, the State sent two notices of the forced tax sale to the home by certified letter. Id. at 223-24, 126 S.Ct. 1708. Both letters were returned to the State as "unclaimed." Id. at 224, 126 S.Ct. 1708. The State sold Jones's house despite the return of its two notices. Id. The buyer, Linda Flowers, then moved to evict Jones's daughter from the house, which led to the case being brought before the Court. Id. at 224-25, 126 S.Ct. 1708. These procedures, the Court said, violated due process. To sell a property owner's house, the Court held that "the State should have taken additional reasonable steps to notify [the homeowner], if practicable to do so." Id. at 234, 126 S.Ct. 1708.
For the first time in our circuit, the dissent seeks to import Jones's "additional steps" requirement to the immigration context. According to the dissent, if the government discovers that notice of immigration proceedings has failed to reach an alien, that "triggers an obligation on the government's part to take additional reasonable steps to effect notice" on the alien "if it is practicable to do so." Dissent 1130 (citing Jones, 547 U.S. at 226, 126 S.Ct. 1708). While our court has cited Jones for general due process principles in immigration cases, no decision has ever required the government to take "additional reasonable steps to effect notice" if it learns that an alien failed to receive actual notice.
There are at least four problems with expanding due process like this.
First, the dissent's view of the law conflicts with circuit precedent. Our caselaw makes clear that certified mailing of notice to the last provided address is constitutionally adequate—even if the alien did not receive actual notice. See Per Curiam Op. 1121-22. And our court has continued to adhere to this precedent after Jones was decided in 2006, and even after Williams v. Mukasey, 531 F.3d 1040, 1042 (9th Cir. 2008), which the dissent thinks governs, was decided in 2008. See, e.g., Popa v. Holder, 571 F.3d 890 (9th Cir. 2009), overruled on other grounds by Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019); Poursina v. USCIS, 936 F.3d 868, 876 (9th Cir. 2019) (holding that the government "satisfie[s] due process [when] it sen[ds] notice by regular mail to the address given.") (simplified). Indeed, the only difference between this case and all the other cases upholding in absentia removals in similar circumstances is that the government became aware that notice was "undeliverable" or "unclaimed." But that distinction isn't enough to upset our precedent when the government acted reasonably in attempting to notify Rivera-Valdes.
Second, there's no reason to graft the procedural protections required to remove a person from his home onto the process to remove an illegal alien from this country. As the Supreme Court has said, the regulation of immigration is a "fundamental sovereign attribute" under our Constitution. See Trump, 585 U.S. at 702, 138 S.Ct. 2392. So "the removal context is a unique enclave" when it comes to due process. Rodriguez Diaz, 53 F.4th at 1216 (Bumatay, J., concurring). And the due process rules for forfeiting a citizen's home do not easily map onto immigration proceedings. Recall that "Congress may make rules as to aliens that would be unacceptable if applied to citizens." Demore, 538 U.S. at 522, 123 S.Ct. 1708. Thus, while illegal aliens are protected by due process, that doesn't mean they are entitled to the full panoply of rights afforded to a person whose home is being seized by the government. Above all, Jones was expressly animated by the government's "exerti[on of] extraordinary power against a property owner—taking and selling a house he owns." 547 U.S. at 239, 126 S.Ct. 1708. And so, the Court reasoned, it was not asking "too much to insist that the State do a bit more to attempt to let him know about it when the notice letter addressed to him is returned unclaimed." Id. Though the removal of an alien is no doubt a solemn process, the rights involved are not the same.
Third, note that the dissent doesn't say what additional steps the government should have taken here. Instead, the dissent's preferred remedy is for our court to remand this case so that the district court can figure it all out. But given that the government possessed no other information about Rivera-Valdes's whereabouts, what additional steps could the government have taken? Short of ordering the government to conduct a manhunt for Rivera-Valdes, it's hard to think of any. Not only would such a requirement contravene our precedent, see Popa, 571 F.3d at 897 (noting that an alien "does not have to actually receive notice of a deportation hearing in order for the requirements of due process to be satisfied"), but it would constitute a profound intrusion into the executive branch. In fact, Rivera-Valdes likely failed to update his address precisely because he did not want the government to know where he was. Forcing the government to engage in a game of cat-and-mouse, attempting to provide notice to those who have every reason to evade government attention, is beyond the requirements of due process and thoroughly unworkable. Even accepting Jones, the Court said that the government need not go very far to provide actual notice. See Jones, 547 U.S. at 235-36, 126 S.Ct. 1708 ("We do not believe the government was required to go [so] far" as searching for a new address in the phonebook or other government records such as income-tax rolls). And we can't just throw up our hands and ask the district court to solve the issue for us.
Fourth, I fear what this view of the law would mean for immigration proceedings writ large. Importing Jones's "additional reasonable steps" requirement to the immigration setting would put on unsure footing every removal, deportation, and immigration conviction where the government had any inkling that the alien did not receive actual notice. The result would wreck the federal courts' dockets with an explosion of litigation and require the government to re-examine the adequacy of its notice procedures for the entire immigration system. It would undermine finality for hundreds, if not thousands, of cases. While this would be the price to pay if due process requires it, nothing in the text and historical understanding of the Fifth Amendment supports this. We should not court chaos so carelessly.
BAKER, Judge, concurring:
The per curiam opinion, which I join, applies the due process balancing test of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313-15, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Ante at 1122-23. In so doing, it distinguishes Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), reasoning that the statutory scheme in place at the time of Rivera-Valdes's 1994 deportation hearing adequately balanced the relevant competing interests by giving him the right to rebut the presumption of effective service. Ante at 1123-24. Under that regime, Rivera-Valdes could have done so by demonstrating that his "mailing address . . . remained unchanged, that neither [he] nor a responsible party working or residing at that address refused service, and that there was nondelivery or improper delivery by the Postal Service . . . ." Arrieta v. I.N.S., 117 F.3d 429, 432 (9th Cir. 1997). He made no such showing below.
Binding precedent holds that the Due Process Clause applies to deportation (now known as removal) hearings. See Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ("It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings."); see also Dobrota v. INS, 311 F.3d 1206, 1210 (9th Cir. 2002) ("Aliens facing deportation are entitled to due process under the Fifth Amendment to the United States Constitution, encompassing a full and fair hearing and notice of that hearing.").
If we allowed the presumption of service to be rebutted by merely showing that a notice of deportation hearing was returned as unclaimed or undeliverable as the dissent proposes, then it would reward an alien's evasion and throw sand in the gears of immigration enforcement efforts. Cf. Terminiello v. City of Chicago, 337 U.S. 1, 37, 69 S.Ct. 894, 93 L.Ed. 1131 (1949) (Jackson, J., dissenting) (stressing the importance of "a little practical wisdom" in applying the "constitutional Bill of Rights"). It would also cast doubt on the validity of tens, if not hundreds, of thousands of the nearly 1.4 million (and counting) deportations in absentia since 1996, and some untold number before that. Due process, however, does not "place [such] impossible or impractical obstacles in the way" of the government protecting its "vital interest[s]," Mullane, 339 U.S. at 313-14, 70 S.Ct. 652, which surely include thwarting unlawful entry into the United States.
Although this case involves an unclaimed certified mailing, under the dissent's logic a returned regular mailing would also rebut the presumption of service and require the government to at least consider what other means were available to provide notice to the alien. This matters because federal law mandated service of a notice of deportation by certified mail from 1990 through 1996. Immigration Act of 1990, Pub. L. 101-649, § 545(a), 104 Stat. 4978, 5061-62. Congress then changed the statute to require service by regular mail, Pub. L. 104-208, § 304, 110 Stat. 3009, 3009-587 to 3009-589 (1996), a requirement that persists to this day, see 8 U.S.C. § 1229.
Before 1990, the law left the manner of service to the agency's discretion: "[T]he alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceedings will be held." Immigration and Nationality Act of 1952, Pub. L. 82-414, § 242(b)(1), 66 Stat. 163, 209. From 1979 to 1990, service of a notice of hearing could be accomplished by either personal service or regular mail. See 8 C.F.R. § 242.1(c) (1979) (describing available means to serve a notice of hearing as "personal service or . . . routine service"); 8 C.F.R. § 103.5a(a)(1) (1979) (defining "routine service" as service by regular mail). From 1957 to 1979, the agency served such notices personally or by certified mail. See 8 C.F.R. § 242.1(c) (1958).
As detailed in the attached addendum, the government deported 1.376 million aliens in absentia from 1996 through the first quarter of fiscal year 2024. (Like others, I have been unable to locate such data for years before 1996. See Ingrid Eagly & Steven Shafer, Measuring In Absentia Removal in Immigration Court, 168 U. Pa. L. Rev. 817, 823 n.25 (2020) (explaining that the Executive Office for Immigration Review was unable to provide FOIA-requested removal in absentia data for years not included in its 2000 statistical yearbook, i.e., 1995 and earlier).)
The Postal Service reports that in fiscal year 2014, 4.3 percent of mail was returned as undeliverable. See https://www.uspsoig.gov/reports/audit-reports/management-advisory-strategies-reducing-undeliverable-addressed-mail. Using that percentage as a conservative proxy yields the conclusion that the notice of deportation was returned as unclaimed or undeliverable in at least 60,000 deportations in absentia since 1996. In my view, the actual number is likely far larger because individuals seeking to evade deportation are not a representative sample of available data involving unclaimed mail. Such persons of necessity move more often than the general population and have every reason not to keep immigration authorities advised of their whereabouts.
Jones is also distinguishable for a second reason—the property owner in that case did not "receive[ ] notice to expect notice." Derezinski v. Mukasey, 516 F.3d 619, 622 (7th Cir. 2008) (Posner, J.). Here, in contrast, immigration officials personally served Rivera-Valdes with an order to show cause and notice that he would be mailed a deportation hearing date.
In the context of unlawful entry into the United States, notice to expect notice of a deportation hearing also adequately balances the competing interests of the alien and the government. "The Constitution does not require that an effort to give notice succeed." Ho v. Donovan, 569 F.3d 677, 680 (7th Cir. 2009) (Easterbrook, J.) (citing Dusenbery v. United States, 534 U.S. 161, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002)). "If it did, then people could evade knowledge, and avoid responsibility for their conduct, by burning notices on receipt—or just leaving them unopened," id., or, I might add, by declining—as Rivera-Valdes did—to notify the government of any change in address after receiving notice to expect notice. "Conscious avoidance of information is a form of knowledge." Id.
On this record, common sense tells us that Rivera-Valdes absconded because the INS's motion to schedule his hearing sent by regular mail was returned as "Not Deliverable As Addressed/Unable to Forward."
Appendix
Addendum to Judge Baker's Concurrence
| In Absentia Removal (Deportation) Orders, 1996-2024 | ||
|---|---|---|
| Fiscal Year | Number | Source |
| 1996 | 54,178 | |
| 1997 | 48,461 | |
| 1998 | 42,243 | |
| 1999 | 40,719 | |
| 2000 | 39,721 | |
| 2001 | 36,764 | |
| 2002 | 37,316 | |
| 2003 | 36,948 | |
| 2004 | 47,407 | |
| 2005 | 100,937 | |
| 2006 | 102,850 | |
| 2007 | 35,578 | |
| 2008 | 21,360 | |
| 2009 | 18,658 | |
| 2010 | 20,412 |
Exec. Office for Immigration Review, Statistical Year Book 2000, at L1, https://www.justice.gov/sites/default/files/eoir/legacy/2001/05/09/SYB2000Final.pdf.
Exec. Office for Immigration Review, Exec. Office for Immigration Review, Statistical Year Book 2002, at H1, https://web.archive.org/web/20060629172106/http://www.justice.gov/eoir/statspub/fy02syb.pdf.
Exec. Office for Immigration Review, Exec. Office for Immigration Review, FY 2006 Statistical Yearbook, at H1, https://www.justice.gov/sites/default/files/eoir/legacy/2008/04/18/fy06syb.pdf.
Exec. Office for Immigration Review, Exec. Office for Immigration Review, FY 2009 Statistical Yearbook, at H1, https://www.justice.gov/sites/default/files/eoir/legacy/2010/03/04/fy09syb.pdf.
[Editor's Note: The preceding image contains the reference for footnote7, 8, 9, 10].
| 2011 | 18,467 | |
| 2012 | 16,491 | |
| 2013 | 18,345 | |
| 2014 | 25,909 | |
| 2015 | 38,260 | |
| 2016 | 34,305 | |
| 2017 | 42,044 | |
| 2018 | 46,213 | |
| 2019 | 91,285 | |
| 2020 | 87,843 | |
| 2021 | 8,536 | |
| 2022 | 62,646 | |
| 2023 | 159,720 | |
| 2024 (first quarter) | 42,714 | |
| Total | 1,376,330 |
Exec. Office for Immigration Review, In Absentia Exec. Office for Immigration Review, In Absentia Removal Orders (2018), https://web.archive.org/web/20180611231211/https://www.justice.gov/eoir/page/file/1060851/download.
Exec. Office for Immigration Review, In Absentia Exec. Office for Immigration Review, In Absentia Removal Orders (2024), https://www.justice.gov/eoir/media/1344881/dl.
[Editor's Note: The preceding image contains the reference for footnotes11, 12].
SANCHEZ, Circuit Judge, dissenting:
When the adequacy of the government's notice to a proceeding is challenged under the Due Process Clause of the Fifth or Fourteenth Amendments, we analyze such claims under Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), and Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006). Under the Supreme Court's precedents, if the government becomes aware that its attempt to provide notice has failed, for example when mailed notice of a proceeding is returned unclaimed, that knowledge obligates the government to take additional reasonable steps to effect notice, if it is practicable to do so. See Jones, 547 U.S. at 225, 126 S.Ct. 1708. Since Jones was decided, we have applied these due process requirements in a wide range of government proceedings affecting real property, chattel, government benefits, licenses, privacy, and other legally protected interests. See infra 1133-34. Notably, our court has already "clarif[ied] that the general rules concerning adequacy of notice [under Mullane and Jones] . . . apply in the immigration context." See Williams v. Mukasey, 531 F.3d 1040, 1042 (9th Cir. 2008).
Despite this clear precedent, the majority holds that Jones does not apply in the context of immigration proceedings. The majority offers no plausible explanation why the due process protections announced in Jones should bypass immigrant petitioners, and it errs by disregarding our binding precedent in Williams. See Balla v. Idaho, 29 F.4th 1019, 1028 (9th Cir. 2022) ("We are bound by the law of our circuit, and only an en banc court or the U.S. Supreme Court can overrule a prior panel decision."). Compounding its mistake, the majority resolves this appeal by relying on pre-Jones circuit precedent that did not address whether mailed notice comports with due process when the government knows its method of notice was ineffective and takes no additional steps that are reasonably available to it. As Jones and other decisions of our circuit make clear, mere adherence to statutory notice requirements does not resolve whether the government has satisfied its constitutional obligations. Because the district court did not analyze appellant's due process challenge under Jones, I would vacate and remand for further proceedings before the district court. I respectfully dissent.
I.
A defendant may collaterally attack the removal order underlying an indictment for illegal reentry under 8 U.S.C. § 1326 by arguing that the proceeding that produced the order violated his Fifth Amendment right to due process. United States v. Mendoza-Lopez, 481 U.S. 828, 839, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987); see, e.g., United States v. Melendez-Castro, 671 F.3d 950, 953 (9th Cir. 2012). To prevail, the defendant must show (1) he exhausted administrative remedies for the removal order; (2) the deportation proceedings improperly deprived him of an opportunity for judicial review; and (3) entry of the removal order was fundamentally unfair. 8 U.S.C. § 1326(d); see also United States v. Palomar-Santiago, 593 U.S. 321, 324-25, 141 S.Ct. 1615, 209 L.Ed.2d 703 (2021). "An underlying order is 'fundamentally unfair' if (1) a defendant's due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects." United States v. Alvarado-Pineda, 774 F.3d 1198, 1201 (9th Cir. 2014).
Appellant Leopoldo Rivera-Valdes ("Rivera-Valdes") moved to dismiss his indictment, claiming that the underlying removal proceedings violated his right to due process under the Fifth Amendment because the mailed notice of hearing was not "reasonably calculated to reach" him. Although he was personally served with an Order to Show Cause ("OSC"), the OSC did not advise him of the date, time, and place of his removal hearing, instead stating that the hearing was "to be calendared and notice provided" at a later date. Appellant's motion to dismiss asserted that the notice of hearing was not reasonably calculated to reach him because the agency sent the notice by certified mail to an address that did not exist and the notice was returned to the agency as "unclaimed."
The district court, reaching no other legal question, concluded the notice of hearing was "reasonably calculated" when sent by certified mail to the address listed on his asylum application and denied the motion to dismiss. The court relied on pre-2006 precedent to conclude that the government satisfies due process by "mailing notice of the hearing to an alien at the address last provided to the INS." Dobrota v. INS, 311 F.3d 1206, 1211 (9th Cir. 2002). See also Urbina-Osejo v. INS, 124 F.3d 1314, 1317 (9th Cir. 1997); United States v. Hinojosa-Perez, 206 F.3d 832, 836-37 (9th Cir. 2000).
On appeal, Rivera-Valdes contends the agency did not use means reasonably calculated to notify him of his removal hearing when the agency sent notice by certified mail, learned the notice had gone unclaimed, and took no additional reasonable steps to effect notice. The government does not meaningfully dispute Rivera-Valdes's factual assertions nor his constitutional right to reasonably calculated notice. Instead, the government contends sending notice by certified mail to the address listed on the asylum application was sufficient to satisfy both statutory and constitutional requirements. In short, the parties dispute what "reasonably calculated" notice requires under the circumstances presented here.
II.
Where due process requires notice of government action, Mullane and Jones provide "the 'appropriate analytical framework' for considering the adequacy of notice of government action." Williams, 531 F.3d at 1042. "[D]ue process requires the government to provide 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' " Jones, 547 U.S. at 226, 126 S.Ct. 1708 (quoting Mullane, 339 U.S. at 314, 70 S.Ct. 652). As Mullane explains, "[t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." 339 U.S. at 315, 70 S.Ct. 652. Adequate notice does not require actual notice. See Dusenbery v. United States, 534 U.S. 161, 169, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002). But adequate notice will generally require something more than employing means that knowingly result in a failure to provide notice—as Jones elaborated.
In Jones, the Arkansas Commissioner of State Lands sent two notices to petitioner Gary Jones by certified mail that his property taxes were delinquent. 547 U.S. at 223-24, 126 S.Ct. 1708. The notices explained that unless Jones redeemed the property, it would be subject to public sale. Id. Both certified letters were sent to the address registered by Jones and both were returned "unclaimed." Id. at 224, 126 S.Ct. 1708. The Commissioner took no further steps to notify Jones of his tax delinquency. Id. at 229, 126 S.Ct. 1708. The home was sold at a tax foreclosure sale to respondent Linda Flowers at a fraction of its fair market value. Id. at 224, 126 S.Ct. 1708. Following the sale, Jones sued the Commissioner and Flowers in state court, asserting that the Commissioner's failure to provide adequate notice of the tax sale and resulting loss of his home was a violation of his right to due process. Id. The Arkansas Supreme Court affirmed the trial court's grant of summary judgment for the defendants, holding that attempting notice by certified mail in accordance with state law satisfied due process. Id. at 224-25, 126 S.Ct. 1708.
The Supreme Court reversed and held that "when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so." Id. at 225, 126 S.Ct. 1708. The Court reasoned that "a person who actually desired to inform" another would not "do nothing when a certified letter . . . is returned unclaimed." Id. at 229, 126 S.Ct. 1708 (emphasis added). Adequacy of notice still depends on " 'all the circumstances.' " Id. at 226, 126 S.Ct. 1708 (quoting Mullane, 339 U.S. at 314, 70 S.Ct. 652). But after Jones, "knowledge on the government's part is a 'circumstance and condition' that varies the 'notice required.' " Id. at 227, 126 S.Ct. 1708 (quoting Walker v. City of Hutchinson, 352 U.S. 112, 115, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956)). Even when notice is reasonably calculated to reach a party when first sent, the government's discovery that the notice has failed to reach the intended recipient is a new condition requiring reassessment. Id. at 230, 126 S.Ct. 1708. Under such circumstances, the Supreme Court concluded, the Commissioner was required to take additional, reasonable steps to effect notice, if it was practicable to do so. Id. at 234, 126 S.Ct. 1708.
This concept was latent in prior Supreme Court opinions. See, e.g., Greene v. Lindsey, 456 U.S. 444, 453-54, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982) (holding notice of detainer action posted on apartment door was inadequate where process servers were aware the postings were torn down and unlikely to reach intended tenants); Robinson v. Hanrahan, 409 U.S. 38, 40, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972) (per curiam) (holding notice of forfeiture proceeding was inadequate where government officials knew vehicle owner was jailed and mailed notice was unlikely to reach him); Covey v. Town of Somers, 351 U.S. 141, 146, 76 S.Ct. 724, 100 L.Ed. 1021 (1956) (holding notice of foreclosure by mailing and publication was inadequate where government officials knew the property owner was not mentally competent to manage her affairs and was without a guardian).
We have applied Jones's due process analysis to evaluate the adequacy of notice in many contexts—from government proceedings affecting real property, chattel, and money to proceedings affecting licenses, privacy, and other protected legal interests. See, e.g., Yi Tu v. Nat'l Transp. Safety Bd., 470 F.3d 941, 946 (9th Cir. 2006) (applying Jones to pilot license suspension proceedings); J.B. v. United States, 916 F.3d 1161, 1173-74 (9th Cir. 2019) (applying Jones to subpoena of tax records); Grimm v. City of Portland, 971 F.3d 1060, 1067-68 (9th Cir. 2020) (applying Jones to towing of car); Taylor v. Yee, 780 F.3d 928, 935-38 (9th Cir. 2015) (applying Jones in action challenging California's escheatment statute).
Our sister circuits have also applied Jones to evaluate the adequacy of notice in various government proceedings. See, e.g., García-Rubiera v. Fortuño, 665 F.3d 261, 276 (1st Cir. 2011) (financial action); D.R.T.G. Builders, LLC v. Occupational Safety & Health Review Comm'n, 26 F.4th 306, 311 (5th Cir. 2022) (OSHA action); Echavarria v. Pitts, 641 F.3d 92, 94-95 (5th Cir. 2011) (DHS action); Lampe v. Kash, 735 F.3d 942, 943-44 (6th Cir. 2013) (bankruptcy action); Peralta-Cabrera v. Gonzales, 501 F.3d 837, 845 (7th Cir. 2007) (DHS action). These decisions confirm that when notice is due in a government action, the Mullane-Jones framework governs whether such notice is constitutionally sufficient.
As we made clear in Williams, the same due process analysis governs the adequacy of notice afforded in immigration proceedings. Williams, 531 F.3d at 1042. In Williams, the petitioner moved to reopen a final order of removal pursuant to regulations implementing the United States' obligations under the Convention Against Torture ("CAT"). Id. at 1041. Petitioner missed the deadline established in the CAT regulations for filing a motion to reopen and argued that notice through publication in the Federal Register was insufficient to afford her due process. Id. at 1042. Williams held that petitioner's due process challenge must be evaluated under the Mullane-Jones " 'analytical framework,' " that is, "due process requires the government to provide 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' " Id. (quoting Jones, 547 U.S. at 226, 126 S.Ct. 1708).
We rejected the petitioner's argument that she was entitled to actual notice and concluded that publication in the Federal Register was sufficient notice under the circumstances because "Petitioner cannot establish that the government had anything more than speculative knowledge that she was eligible for CAT relief when the regulations were promulgated." Id.
The majority's contention that Jones does not apply in immigration proceedings flatly contradicts what was stated in Williams and contravenes the long-settled principle that only an en banc court or the Supreme Court can overrule a prior panel decision. Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc). While Williams did not involve the government discovering that its notice to a petitioner had not succeeded, that left open the question of how the due process analysis under Jones would apply in a different immigration case, not whether Jones should apply to immigration proceedings at all. Williams squarely addressed whether the Mullane-Jones due process framework applies in immigration proceedings. It does, and it is error for this panel to ignore it. Because the district court below never addressed whether the government had reasonable alternatives available to effect notice in this case, I would remand and direct it to apply Jones in the first instance. See Jones, 547 U.S. at 234, 126 S.Ct. 1708.
III.
Even if Williams were not binding authority, the majority's assertion that immigration proceedings are different and less deserving of the same due process protections under Jones is unconvincing and breaks with decades of precedent. We have reaffirmed time and again that "[t]he 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." Farhoud v. INS, 122 F.3d 794, 796 (9th Cir. 1997) (citing Landon v. Plasencia, 459 U.S. 21, 32-33, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982)). See also Dobrota, 311 F.3d at 1210 ("Aliens facing deportation are entitled to due process under the Fifth Amendment to the United States Constitution, encompassing a full and fair hearing and notice of that hearing."); Barraza Rivera v. INS, 913 F.2d 1443, 1447 (9th Cir. 1990) ("The Fifth Amendment guarantees due process in deportation proceedings."); Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999) (accord).
" 'The fundamental requisite of due process of law is the opportunity to be heard.' " Mullane, 339 U.S. at 314, 70 S.Ct. 652 (quoting Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 58 L.Ed. 1363 (1914)). "The notice must be of such nature as reasonably to convey the required information and it must afford a reasonable time for those interested to make their appearance." Id. (internal citation omitted). Contrary to the majority's contention, personal service of the OSC on Rivera-Valdes did not satisfy due process because the OSC did not contain the specific date, time, or location of the removal hearing, which had yet to be calendared. The government concedes that the only document containing the specific date, time, and location of the removal hearing was the notice of hearing sent by certified mail, and that notice was returned to the agency as "unclaimed." The government also concedes that the agency took no other steps to notify Rivera-Valdes of his scheduled removal hearing. The due process analysis must therefore focus on whether any reasonable alternatives were in fact available to the government to effect notice.
The majority errs by relying on pre-Jones caselaw to resolve this appeal. These cases did not address the specific question at hand—"whether due process entails further responsibility when the government becomes aware prior to [the government action] that its attempt at notice has failed." Jones, 547 U.S. at 227, 126 S.Ct. 1708. In Farhoud, the notice of hearing was sent by certified mail to the petitioner, who conceded he was living at that address on that date. 122 F.3d at 796. We held that due process does not require the government to provide actual notice of the hearing; rather, "due process is satisfied if service is conducted in a manner 'reasonably calculated' to ensure that notice reaches the alien." Id.
Farhoud did not involve a claim that the government was aware its notice had not reached the intended recipient and it failed to take additional steps to effect notice. Id. Nor does any other case cited by the majority. See Dobrota, 311 F.3d at 1211-12; Urbina-Osejo, 124 F.3d at 1317; Hinojosa-Perez, 206 F.3d at 837; Popa v. Holder, 571 F.3d 890, 893 (9th Cir. 2009), abrogation recognized by Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019). Indeed, we have suggested in other immigration cases that, under Jones, government knowledge of failed notice is a circumstance the government must consider when determining the reasonableness of its chosen method of notice. See Chaidez v. Gonzales, 486 F.3d 1079, 1086 n.8, 1086-87 (9th Cir. 2007) (citing Jones but declining to reach constitutional question where statutory notice was defective); Al Mutarreb v. Holder, 561 F.3d 1023, 1027-28 (9th Cir. 2009) (citing Jones but avoiding constitutional question after finding removal order invalid for other reasons); see also Rendon v. Holder, 400 Fed. Appx 218, 219-20 (9th Cir. 2010) (unpublished) (applying Jones to uphold additional steps taken by INS to effect notice). We recognized in these cases that whether notice of a deportation proceeding by certified mail comports with due process is a question governed by Jones. The notion that Jones's due process framework has no bearing on immigration proceedings is misguided.
My colleagues cite two cases decided after Jones, but neither involved the government becoming aware that its attempt at notice had failed, and thus neither cites nor discusses Jones in its analysis. See Popa, 571 F.3d at 893; Poursina v. USCIS, 936 F.3d 868, 876 (9th Cir. 2019). "[C]ases are 'not precedential for propositions not considered.' " United States v. Kirilyuk, 29 F.4th 1128, 1134 (9th Cir. 2022) (internal citation omitted).
In any event, even if our cases have held that notice of hearing sent by regular mail to an alien's last provided address is "constitutionally adequate," Urbina-Osejo, 124 F.3d at 1317, Jones requires a different due process analysis when the government learns its attempt at notice has failed. Jones, 547 U.S. at 227, 234, 126 S.Ct. 1708. We are bound by this intervening Supreme Court authority. See Miller, 335 F.3d at 893.
The majority concludes that because the agency satisfied statutory notice provisions, it necessarily satisfied due process requirements as well. But Jones rejected this argument, making clear that "the government [must] consider unique information about an intended recipient regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case." Jones, 547 U.S. at 230, 126 S.Ct. 1708. Although the Commissioner complied with state law when he sent notice of tax delinquency by certified mail, id. at 224-25, 126 S.Ct. 1708, this did not insulate the Commissioner against claims his notice was constitutionally defective. Id. at 231-32, 126 S.Ct. 1708. See also Yi Tu, 470 F.3d at 945-46 (rejecting agency claim that because it was statutorily authorized to give notice by certified mail, its notice of pilot license suspension proceedings sent by certified mail was constitutionally adequate) (citing Jones, 547 U.S. at 224, 126 S.Ct. 1708).
Finally, the majority purports to apply a due process balancing test to justify ignoring Jones's "government knowledge" analysis. According to the majority, the statutory regime in place at the time of Rivera-Valdes's 1994 deportation hearing was "reasonably calculated to ensure that Rivera-Valdes received notice" because it required aliens to update their addresses with the agency. Thus, the majority concludes, "by failing to comply with his statutory obligations, Rivera-Valdes 'relieve[d] the government of its responsibility to provide' him with any more notice of the hearing." Id. (quoting Popa, 571 F.3d at 897).
The majority's position suffers from two key flaws. First, the interest-balancing called for in Mullane and Jones is the very analysis the majority seeks to avoid here. To balance the interests of the government and individual, due process requires that the government provide "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afform them an opportunity to present their objections." Mullane, 339 U.S. at 314, 70 S.Ct. 652. Notice is generally sufficient "if it was reasonably calculated to reach the intended recipient when sent" and the government "heard nothing back indicating that anything had gone awry." Jones, 547 U.S. at 226, 126 S.Ct. 1708. But the balance of interests changes when the government becomes aware that its efforts to provide notice have proven ineffective. As Jones explained, "[d]eciding to take no further action is not what someone 'desirous of actually informing' [the interested party] would do; such a person would take further reasonable steps if any were available." Id. at 230, 126 S.Ct. 1708. The analysis in Jones cannot be divorced from Mullane, for it addresses what process is due when the government discovers that notice pursuant to its normal procedures has failed and the interested party has not been apprised of the hearing.
Second, Jones rejected the majority's view that by failing to comply with a legal requirement to register and keep an address updated, the interested party loses the right to reasonable follow-up measures. See 547 U.S. at 231-32, 126 S.Ct. 1708 ("Jones' failure to comply with a statutory obligation to keep his address updated [did not] forfeit[ ] his right to constitutionally sufficient notice," because "[a] party's ability to take steps to safeguard its own interests does not relieve the State of its constitutional obligation.") (citation omitted). Whether in Jones or here, a person who fails to meet their statutory obligation to update their address, or to pay their property taxes, does not forfeit their due process right to "adequate notice of the impending [government action]." Id. at 234, 126 S.Ct. 1708.
The majority contends that it would be futile to remand to the district court. But remand was the appropriate remedy in Jones for determining whether additional reasonable steps were available to the State to effect notice. See 547 U.S. at 234-36, 126 S.Ct. 1708. And in Echavarria, the Fifth Circuit left it to the district court to determine that "additional reasonable steps were in fact available, and were not used," by DHS to notify bond obligors about the breach of an immigration bond after notice was returned as undeliverable. 641 F.3d at 95-96 (applying Jones in immigration bond context). Because the existing record does not disclose what steps were available to the government here, the district court would be best positioned to determine that question in the first instance.
IV.
Judge Bumatay writes separately to convey his concern that I would break new constitutional ground to resolve this case. Not so. As I have explained, existing precedent already confirms two points: first, immigrants subject to removal are entitled to due process protections under the Fifth Amendment; and second, we and other circuits have already applied Jones in a variety of government proceedings affecting real and personal property, licensing, privacy, and other protected legal interests. I break no new ground by applying foundational due process principles from Mullane and Jones to another type of government proceeding. It is the majority who departs from our precedent by failing to apply this due process framework in the context of an immigration case. See Williams, 531 F.3d at 1042.
Judge Bumatay's concurrence expresses a novel and overly restrictive view of due process that has yet to gain purchase in our circuit. My colleague cites to his own concurrence in Rodriguez Diaz v. Garland, 53 F.4th 1189 (9th Cir. 2022) (Bumatay, J., concurring), for the proposition that removal proceedings are a "unique enclave" when it comes to due process. Id. at 1216. But he does not explain what makes removal proceedings different from or less deserving of the "elementary and fundamental" requisites of due process in any government proceeding—notice and an opportunity to be heard. Mullane, 339 U.S. at 314, 70 S.Ct. 652. And the stakes to an individual subject to removal are no less severe than other government proceedings. See Niz-Chavez v. Garland, 593 U.S. 155, 163-64, 141 S.Ct. 1474, 209 L.Ed.2d 433 (2021) ("A notice to appear serves as the basis for commencing a grave legal proceeding," "it is 'like an indictment in a criminal case [or] a complaint in a civil case.' " (brackets in original)).
Judge Bumatay's reliance on Trump v. Hawaii, 585 U.S. 667, 138 S.Ct. 2392, 201 L.Ed.2d 775 (2018), does little to support his position. There, the Supreme Court discussed "certain aliens abroad"—that is, noncitizens outside the United States. Id. at 675, 138 S.Ct. 2392. The Due Process Clause applies to "persons," regardless of citizenship. See U.S. Const. amends V & XIV. Accordingly, this court has consistently held that the Constitution entitles a noncitizen facing removal within the United States to a "full and fair hearing and notice of that hearing." Dobrota, 311 F.3d at 1210; see Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006); Barraza Rivera, 913 F.2d at 1447; Campos-Sanchez, 164 F.3d at 450. Judge Bumatay's contention that due process protections should apply with less force to individuals suspected of being in the country unlawfully is squarely at odds with our precedent.
My colleagues' concern about the effect Jones would have on immigration proceedings is wildly overstated. Jones simply prompts further inquiry into whether the government could have taken additional reasonable steps to effect notice when it becomes aware its method of providing notice was unsuccessful. Because this analysis was never undertaken by the district court, we do not know what evidence the government could or would present. To put things in perspective, Jones has been the law of the land since 2006, governing the constitutional adequacy of notice afforded to interested parties in countless federal, state, and local government proceedings. Millions of notices of government action have likely been delivered by governments in that time, and yet courts have not ground to a halt and government agencies have found ways to take additional steps to effect notice when it is practicable to do so.
Judge Baker raises the specter that some large portion of the 1.376 million in absentia orders issued since 1996 could be called into question, but nowhere in Judge Baker's addendum does it disclose the number of in absentia hearings that involved the return of unclaimed notices of hearing or otherwise reflected government knowledge that notice was ineffective.
More importantly, the protections enshrined in the Due Process Clause should not be given short shrift simply because of a person's immigration status. I can imagine few interests more important than avoiding persecution or torture—claims regularly raised in removal proceedings. Given the stakes involved, the constitutional protections described in Mullane and Jones—as well as the flexibility in their application—should find a natural home in immigration proceedings.