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Hamazaspyan v. Holder

December 21, 2009


On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A095-665-745.

The opinion of the court was delivered by: Bea, Circuit Judge



Argued and Submitted June 9, 2009 -- San Francisco, California

Before: Mary M. Schroeder, A. Wallace Tashima, and Carlos T. Bea, Circuit Judges.

Edvin Hamazaspyan petitions for review of the Board of Immigration Appeals' ("BIA") dismissal of his appeal from an immigration judge's ("IJ") denial of his motion to reopen an in absentia removal order. The IJ ordered Hamazaspyan's removal after he failed to appear at a hearing scheduled by the IJ to consider his removal from the United States. Hamazaspyan contends he did not receive notice of the time and place of the hearing and that it was error for the immigration court not to send the notice of the time and place of the hearing to his counsel of record. It is not contested the IJ did not send such notice to counsel. We hold the immigration court erred because it did not serve Hamazaspyan's counsel of record with a hearing notice. Therefore, we reverse the BIA's decision and grant Hamazaspyan's petition for review.

I. Background

The Department of Homeland Security ("DHS") detained Hamazaspyan after he attempted to enter the United States with a valid foreign passport, but an altered, or counterfeit, visa. While Hamazaspyan was in custody, the government personally served him with a "notice to appear."*fn1 On the same day, the immigration court personally served Hamazaspyan with a "hearing notice."*fn2 The notice to appear and the hearing notice specified Hamazaspyan's right to an attorney, the consequences of failing to appear at the scheduled hearing-i.e., removal in absentia-and Hamazaspyan's duty to provide the immigration court with a correct address if his correct address was not listed on the hearing notice.

After Hamazaspyan received the notice to appear and the hearing notice in person, but before his scheduled hearing, Hamazaspyan retained counsel, who filed a notice of appearance with the immigration court.

Hamazaspyan and his counsel appeared at his first hearing. His counsel sought his release from detention upon a bond and moved to change the venue for his hearing from San Pedro to Los Angeles, because Hamazaspyan's grandparents lived in Los Angeles.

Hamazaspyan's counsel was successful. Two days later, DHS paroled Hamazaspyan. Prior to his parole, Hamazaspyan had completed, or had helped to complete, at least three forms that required him to provide an address where he could be reached. Each of the documents contained his grandparents' correct street address, but two of the documents did not contain an apartment number and the third document contained an incorrect apartment number.*fn3

Following Hamazaspyan's parole, the San Pedro immigration court granted his motion for a change of venue and transferred the removal proceedings from San Pedro to the Los Angeles immigration court. The San Pedro immigration court sent the order granting the motion to Hamazaspyan's counsel of record. The order listed Hamazaspyan's address without an apartment number.

The Los Angeles immigration court then sent, by regular mail, a hearing notice to Hamazaspyan at the address it had on file; that address did not include an apartment number. Hamazaspyan never received the hearing notice; it was returned to the immigration court approximately eight days after the scheduled hearing date. The immigration court did not send the hearing notice to Hamazaspyan's counsel of record.

Hamazaspyan did not appear at his scheduled hearing before the immigration court. The immigration court ordered him removed in absentia, pursuant to 8 U.S.C. § 1229a(b)(5)(A).*fn4 Notwithstanding the hearing notice was not sent to Hamazaspyan's counsel, the Los Angeles immigration court did send the removal order to Hamazaspyan's counsel of record. Counsel immediately telephoned Hamazaspyan, who denied having received the hearing notice.

Hamazaspyan, his grandparents, and his counsel of record all submitted affidavits to the immigration court averring they had not received the hearing notice.

Hamazaspyan promptly and timely moved to reopen the in absentia removal order on grounds the hearing had been held without proper notice to him and without giving him an opportunity to present his case for asylum based on claimed persecution for political activity in Armenia. The IJ denied the motion on the grounds the immigration court sent notice to the address Hamazaspyan provided to the DHS, i.e., the address without the apartment number. Hamazaspyan then appealed the IJ's denial of the motion to reopen to the BIA, which adopted and affirmed the decision of the IJ without discussing whether the immigration court was required to serve Hamazaspyan's counsel of record. Hamazaspyan timely petitioned this court for review.

II. Jurisdiction and Standard of Review

Hamazaspyan's removal order is a final order over which this court has jurisdiction pursuant to 8 U.S.C. ยง 1252(a)(1). This court's review of a removal order entered in absentia is limited to (i) the validity of the notice provided to the alien, (ii) the reasons for the alien's absence from the proceeding, ...

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