The petitioner’s removal order is a final order over which this court has jurisdiction pursuant to 8 U.S.C. § 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, and (iii) whether or not the alien is removable. This court reviews the BIA’s denial of motions to reopen for abuse of discretion. The BIA’s determination of purely legal questions is reviewed de novo. Whether an immigration proceeding violates an alien’s due process rights is a purely legal issue and is reviewed de novo. Factual findings are reviewed for substantial evidence.
This court now holds that serving a hearing notice on an alien, but not on the alien’s counsel of record, 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 counsel of record.
An IJ is required to enter an in absentia removal order if the government establishes by clear, unequivocal, and convincing evidence that (1) the alien was provided statutory notice and (2) the alien is removable. An IJ may rescind his order if the alien demonstrates that he did not receive notice in accordance with paragraph (1) or (2) of Section 1229(a) of Title 8.
Notice in accordance with paragraph (1) or (2) of section 1229(a) of Title 8 requires written notice shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any). The BIA has decided that personal service is practical for the immigration court only when the respondent is physically present before the immigration judge. Such personal service did not occur in the instant case.
The next statutory means of service is service by mail. The text of 8 U.S.C. § 1229(a)(1) and (2) is through service of mail to the alien or to the alien’s counsel of record, if any. Where possible, this court is required to give each word of a statute meaning. Does “if any” have any meaning as to whether counsel must be served? “If” means “1. in case that; granting that; supposing that . . .” Webster’s New Twentieth Century Dictionary Unabridged (2d ed. 1983). “Any” means “1. one (no matter which) of more than two . . .” Put together: in case that the alien has counsel, one of the counsels must be served. In other words, although the word “or” is disjunctive, the phrase “if any” creates a condition in the choice between serving the alien or serving his counsel. If the case is that the alien is represented by counsel of record, then the government must serve one of his counsels of record. If, however, the alien is not represented by counsel of record, then the government must serve the alien. The purpose of the word “or” in the statute is to clarify that the immigration court is not required to send notice to both the alien and the alien’s counsel of record. Therefore, this court holds that, once the alien’s counsel files an appearance before the immigration court, 8 U.S.C. § 1229 requires the government to serve an alien’s counsel of record with any document related to the alien’s removal proceedings.
If Congress had wanted to make 8 U.S.C. § 1229(a) truly disjunctive, to allow service of notice of a Notice to Appear or hearing notice on either the alien or the alien’s counsel of record,
Congress could simply have eliminated “if any.” Of course, if there is no counsel of record, one cannot be served.
There are provisions of 8 U.S.C. §§ 1229 and 1229a that might, on first glance, appear contrary to this court’s holding. Section 1229a(b)(5)(A) and § 1229(c) state written notice shall be sufficient if served on the most recent address the alien provided under § 1229(a)(1)(F). One interpretation of these provisions could be that they supersede the requirement in § 1229(a)(1) or (2) that an alien’s counsel of record must receive service. Both provisions more likely regulate only where service can be effected upon the alien, and do not eliminate the requirement of service upon the alien’s counsel of record, if the alien has such counsel, and counsel has duly filed an appearance before the immigration court on the court’s record. Nothing in either provision suggests an alien who updates his residential address with DHS or the immigration court thus loses the statutory right to have DHS or the immigration court send notice to the address of his counsel of record.
This court’s interpretation of 8 U.S.C. § 1229 is supported by 8 C.F.R. § 1292.5, which requires the immigration court to serve an exhaustive list of papers on aliens’ attorneys. This provision applies equally to notices to appear and hearing notices under 8 U.S.C. § 1229.
It was “procedurally irregular” for the immigration court in the instant case not to send notice to the petitioner’s counsel of record. The hearing notice itself included check-boxes to indicate who should receive the notice, including a box for the alien and the alien’s attorney. On the hearing notice in question, both boxes were checked, which at least suggests the immigration court intended to send the notice to the petitioner’s counsel of record. Nevertheless, the government does not contest that the immigration court failed to send the hearing notice to the petitioner’s counsel of record.
In holding 8 C.F.R. § 1292.5 controls the notice requirement under 8 U.S.C. § 1229a(b)(5), this court disagrees with Giday v. INS, 113 F.3d 230 (D.C. Cir. 1997). Giday provides no compelling rationale for this court to follow. The decision simply omits the key phrase “if any” of 8 U.S.C. § 1229(a)(1) and (2), when discussing the relevant statutes and regulations and gives no reason for such abstinence. Giday has not been followed on this point of law by any subsequent court.
Further, this court rejects the government’s contention that 8 C.F.R. § 1003.23 controls in lieu of 8 C.F.R. § 1292.5 because § 1003.23 is the more specific statute. It is not. Although § 1003.23 may include specific provisions regarding in absentia removal orders, the pertinent text of that regulation is not specific to statutory notice requirements. Instead, the pertinent text addresses exceptions to filing deadlines. Therefore, it is § 1292.5 that is more specific—with respect to notice requirements—than § 1003.23.
In short, this court holds that 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. Furthermore, this court holds that the BIA erred when it adopted and affirmed the IJ’s decision. As a result, this court grants the petition for review, reverse the BIA’s decision that adopted the IJ’s order to deny the petitioner’s motion to reopen, and remand for further proceedings.
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