Hamazaspyan v. Holder (9th Circuit) on Motion to Reopen
In Hamazaspyan v. Holder, the Los Angeles Immigration Judge denied Mr. Hamazaspyan’s motion to reopen an in absentia removal order on the grounds the immigration court sent notice to the address Mr. Hamazaspyan provided to the Department of Homeland Security, an address without an apartment number. However, the Immigration Court erred by not serving Petitioner’s counsel of record with the hearing notice. Serving a hearing notice on an alien, but not on the alien’s counsel is insufficient when an alien’s counsel of record has filed a notice of appearance with the immigration court. When such an appearance has been filed, the government must serve all notices to appear and all hearing notices on the respondent’s counsel of record. The Court does not reach the question whether an immigration judge may issue an in absentia removal order if it is uncontested that the alien received actual notice despite the government’s failure to send the notice to the alien’s counsel of record. The record here is undisputed that Hamazaspyan did not receive actual notice because the hearing notice was not handed to him in person, and did not reach him in the mail – it was returned to the immigration court by the postal service and labeled “undeliverable.” An in absentia removal order must be rescinded if the government sent notice of the time and place of a removal hearing by mail to an address provided by the alien, but (1) the BIA has not proven the alien received actual notice; (2) the alien has proven he is represented by counsel who had filed a notice of appearance as counsel of record with the immigration court before such notice had been sent; and (3) the government has not proven it sent notice to the alien’s counsel of record.
If you have been ordered removed from the United States in absentia, contact The Nunez Firm to discuss the possibility of reopening your case. Managing attorney Jay Nunez has an extensive track record of success in reopening in absentia cases. The Nunez Firm offers free consultations in order to discuss your case and the options available to you.
