Hamazaspyan v. Holder (9th Cir. 2010)

The 9th Circuit ruled that in order for service of a notice of a hearing to be effective, it must be served on a respondent’s attorney of record if such attorney has made a notice of appearance.

The case arose when DHS detained Hamazaspyan after he attempted to enter the U.S. with a counterfeit entry visa.  DHS placed him in detention and removal hearings, and personally served him with a “notice to appear.”  This document orders a person to appear at a certain date, time and place in immigration court for removal proceedings.  The immigration court also served him with a “notice to appear” for the master calendar hearing for his removal case.  The notice complied with all regulatory requirement in that it advised Hamazaspyan of his 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 his correct mailing address.

Hamazaspyan hired an attorney, who filed a “notice of appearance” with the immigration court.  The notice of appearance advises the immigration court that the respondent is represented by counsel as well as the mailing address of counsel.  His counsel assisted him in being released from detention.  After he was released from detention, Hamazaspyan completed several forms for DHS which required disclosure of his address.  For each form, he wrote down the correct address of his grandparents, with whom he was staying.  However, he neglected to write, or wrote incorrectly, the apartment number of the address.

The immigration court sent to Hamazaspyan via regular mail a notice of hearing to his last known address (with a missing apartment number).  He never received the noticed.  It was returned to the immigration court eight days after the scheduled hearing date.  The court did not send a copy of the hearing notice to Hamazaspyan’s counsel.

Hamazaspyan did not appear at the scheduled hearing date.  Consequently, the immigration court ordered him removed in absentia.  The court sent a copy of the removal order to Hamazaspyan’s counsel, who filed a motion to request that the order be lifted.  The immigration court denied the motion and it was appealed.

The question on appeal was whether serving a hearing notice on a respondent in removal hearings, but not on the respondent’s counsel of record, sufficient to satisfy the requirements for an in absentia removal order?  For the purposes of establishing that a respondent is subject to an in absentia removal order for failing to appear at an immigration hearing, the government must prove that the respondent had been properly notified of the hearing.  The regulations require that the respondent should be personally served with the notice.  If this is not practicable (as in most cases), a notice may be mailed to the respondent’s address.  If the respondent has a counsel of record, the notice must be mailed to the counsel.

The 9th Circuit made it clear in its ruling that failing to provide the counsel of record with the hearing notice, even if it was sent to the respondent himself, is insufficient notice and is fatal to the government’s basis for an in absentia order.  For this reason Hamazaspyan was permitted to reopen his hearing to contest the in absentia removal order.  The Court cautioned in a footnote, however, that retaining an attorney is not enough.  The attorney must have filed a notice of appearance in order to be recognized by the court and for the rule to apply.