Opinion
CIVIL ACTION H-02-1537
November 5, 2002
Opinion on Writ of Habeas Corpus
1. Introduction.
Obimefuna Anyah came to America as a child in the company of his father. His father became a citizen, but Anyah has not; he has remained a permanent resident. In 1999, at the age of 22, Anyah was convicted of forgery and was given deferred adjudication. Anyah's address was current in the Immigration and Naturalization Service's files in May 1999. In December 2000 — 18 months later — the Service began the removal process. It sent the notice of removal proceedings to the address in its file, but Anyah had moved from that address in May 2000. Anyah neither notified the Service of the change — as he was obliged to do within ten days — nor did he give the Post Office a forwarding order so his mail would reach him at his new address.
2. Removal Proceedings.
Neither party has produced the initial notice of the initiation of the removal. The amended notice was returned to the Service. Anyah did not appear at the hearing, and he was ordered deported. Once Anyah was arrested by the Service, he got counsel, moved to re-open the hearing, and then asked the appeals board to remand the case for a hearing or otherwise allow him another opportunity to contest the removal. The appeals were denied. Anyah did not seek review by the court of appeals. He applied for a writ of habeas corpus in the district court, and deportation was stayed until his petition could be considered.
Coincidently, Anyah was subpoenaed in an entirely different matter for the same date as his immigration hearing, but because counsel for the government excused his appearance in court until later in the week, there was no actual conflict. Anyah has explained his absence at the removal hearing in several ways. For this review, it will be assumed that he did not get the notices mailed to him. Whether the government's obligation to act only with regular, reasonable, and relevant criteria and processes has been met turns on the question of the statutory and constitutional adequacy of the notice to the respondent.
3. Statutory Interpretation.
The statutes about immigration require that aliens report their address within ten days of a change. While this requirement carries an independent criminal penalty for its violation, its manifest purpose is to allow the Service to contact the alien. The law does not have independent requirements for a removal address, deportation address, or change of status address.
See 8 U.S.C. § 1305 (2002).
The statute describing the initial removal notice requires the Service to remind the alien that he must keep "the Attorney General" current on his address and to warn him that he can be removed if he fails to appear. While these warnings are sensible, they do not require the Service to obtain a special address; the Service may send its warnings to the address the alien has furnished.
See 8 U.S.C. § 1229 (2002).
The Service has satisfied it statutory duty, and its process was regular. Beyond the requirements of the statute, the Constitution imposes on the government a transcendent general duty of just means. One of the essentials of reasonable technique is furnishing notice and a hearing. A hearing without notice is an empty gesture. The beneficiary can voluntarily choose not to accept the law's protections. When an alien chooses not to furnish the Service his address, he also chooses not to get information that the Service might mail him. While this rule could be too harsh on some facts, an alien who is under no disability can reasonably be expected to notify the Service, considering the statutory obligation and the alien's interest in the information from the Service.
Constructive is a word that in law means pretend. Constructive notice is not notice but is a sufficient reason for not requiring notice. The alien has the opportunity for notice, but having made the Service's notice ineffective by his active omission, he waived it.
While the Constitution is largely about procedures for the exercise of public authority, in its assignment, limits, and processes its goal is substantial justice. Despite the omissions that condemn his application for relief, to fulfill our Constitutional commitment to justice, the court will check for the exceptional circumstance that would make this case an injustice. The Service sought removal of Anyah because of his felony — a conviction for a crime of deliberate dishonesty. He does not contest that he was the defendant. Because the predicate for the removal is an adjudicated datum, it is highly unlikely that the alien's presence at the hearing would have altered the outcome. In his application Anyah says that he should be allowed asylum and should be recognized as a citizen, but he has never applied to the Service for either status. Both of them would be separate from the removal proceeding. After a year in detention, Anyah has not furnished the Service, the court of appeals, or the district court with a plausible case for his remaining despite his conviction.
3. Conclusion.
Because notice to Anyah at the address he furnished to the Service is sufficient, his application for a writ of habeas corpus will be denied. Consequently, the stay of his deportation will be lifted.