United States v. Rivera-Valdes

105 F.4th 1118

UNITED STATES of America, Plaintiff-Appellee, v. Leopoldo RIVERA-VALDES, Defendant-Appellant.

No. 21-30177

United States Court of Appeals, Ninth Circuit

Argued and Submitted November 9, 2022 Portland, Oregon

Filed June 17, 2024

Appeal from the United States District Court for the District of Oregon, Karin J. Immergut, District Judge, Presiding, D.C. No. 3:19-cr-00408-IM-1

Sarah Barr (argued) and Suzanne Miles, Assistant United States Attorneys; Amy E. Potter, Appellate Chief; Scott E. Asphaug, United States Attorney, District of Oregon; United States Department of Justice, Office of the United States Attorney, Portland, Oregon; for Plaintiff-Appellee.

Kimberly-Claire E. Seymour (argued), Assistant Federal Public Defender; Eugene, Oregon; for Defendant-Appellant.

Before: Patrick J. Bumatay and Gabriel P. Sanchez, Circuit Judges, and M. Miller Baker,^* International Trade Judge.

Per Curiam Opinion;

Concurrence by Judge Bumatay;

Concurrence by Judge Baker;

Dissent by Judge Sanchez

OPINION

PER CURIAM:

Thirty years ago, Leopoldo Rivera-Valdes failed to appear at his deportation hearing and was ordered deported in absentia. He did not attend this hearing despite being directly given an order to appear and then being sent the date of the hearing by certified mail at the address he provided to immigration officials. In 2006, after being apprehended, he was finally deported.

After being deported, Rivera-Valdes again unlawfully entered the United States. In 2019, he was charged with illegal reentry under 8 U.S.C. § 1326. In the district court, he challenged the indictment, alleging that his 1994 in absentia deportation order violated due process. The district court denied the motion. Rivera-Valdes then entered a conditional guilty plea, preserving the right to appeal the constitutional challenge to his deportation. He now appeals.

Because Rivera-Valdes failed to establish that his deportation violated his due process rights, we affirm.

I.

Rivera-Valdes, a citizen of Mexico, unlawfully entered the United States in 1992. In December 1993, he applied for asylum and work authorization, falsely claiming that he was a citizen of Guatemala. In that application, Rivera-Valdes provided his address as "4037 N. Cleveland, Portland, OR, 97212." In January 1994, the then-Immigration and Naturalization Service sent Rivera-Valdes a notice acknowledging receipt of the asylum application by regular mail to his Portland address.

In two notices, dated February 3 and 8, the INS informed Rivera-Valdes that his application for work authorization was approved and instructed him to pick up the authorization at a local INS office. Again, the INS mailed the notices to the Portland address provided by Rivera-Valdes.

Rivera-Valdes presumably received notice of the work authorization approval because he showed up at the local INS office to pick it up on March 3. There, he presented a false Guatemalan birth certificate as proof of his identity. But his deception was discovered. Immigration officials did not hand Rivera-Valdes the work authorization, instead serving him with an "order to show cause and notice of hearing." The order and notice directed him to appear at deportation proceedings before an immigration judge at a date to be calendared. An immigration official also read the order to Rivera-Valdes in Spanish and he signed the notice, acknowledging its receipt.

The order and notice listed Rivera-Valdes's Portland address and warned him that he was required by law to immediately notify the immigration court within five days of any address change. It stated that "[a]ny notices will be mailed only to the last address provided . . . ." The order and notice further advised him that he would be ordered deported in absentia if he failed to attend his deportation hearing. Rivera-Valdes did not provide the government with any notice of a change of address.

On April 20, the INS moved the immigration court to schedule a hearing and mailed a copy of the motion to Rivera-Valdes at the Portland address. The postal service returned the mail as "Not Deliverable As Addressed/Unable To Forward."

On April 25, the immigration court sent Rivera-Valdes notice that his deportation hearing was scheduled for August 12—this time, the notice was sent by certified mail. The postal service returned this mailing as "unclaimed" a month later.

Rivera-Valdes failed to appear at his August 12 deportation hearing, and the immigration judge ordered him deported in absentia.

II.

A defendant charged with violating § 1326 may collaterally attack his underlying deportation order. See United States v. Martinez, 786 F.3d 1227, 1230 (9th Cir. 2015). To prevail, a defendant must show that (1) he exhausted administrative remedies; (2) the deportation proceedings improperly deprived him of an opportunity for judicial review; and (3) the deportation order was fundamentally unfair. 8 U.S.C. § 1326(d); see also United States v. Palomar-Santiago, 593 U.S. 321, 326, 141 S.Ct. 1615, 209 L.Ed.2d 703 (2021). A deportation order is fundamentally unfair if the defendant's due process rights were violated "by defects in his underlying deportation proceeding," and the defendant suffered prejudice as a result. Martinez, 786 F.3d at 1230.

A.

On appeal, Rivera-Valdes argues that immigration authorities violated his due process rights by ordering him deported in absentia despite the notice of the deportation hearing being returned as undeliverable or unclaimed. We disagree.

At the time of Rivera-Valdes's 1994 deportation, Congress required that each alien receive written notice of deportation proceedings in person or "by certified mail." 8 U.S.C. § 1252b(a)(1), (2) (repealed 1996). That statute specified that the alien "must immediately provide" a contact address and "must provide the Attorney General immediately with a written record of any change of the alien's address." Id. § 1252b(a)(1)(F)(i)-(ii). If the alien failed to provide up-to-date address information, then Congress said that "written notice shall not be required." Id. § 1252b(a)(2). And if the alien failed to attend deportation proceedings after being given notice "at the most recent address provided," Congress commanded that the alien "be ordered deported . . . in absentia" so long as the notice requirements were met. Id. § 1252b(c)(1).

Under this statutory regime, service of a deportation notice by certified mail only created a rebuttable "presumption of proper delivery." Arrieta v. INS, 117 F.3d 429, 431 (9th Cir. 1997). If an alien could "establish that her mailing address has remained unchanged, that neither she nor a responsible party working or residing at that address refused service, and that there was nondelivery or improper delivery by the Postal Service, then she [had] rebutted the presumption of effective service." Id. at 432. The burden then shifted to the government "to show that a responsible party refused service." Id.

More than 25 years ago, we concluded that the government's compliance with these notice provisions satisfied due process, even if the alien did not "actually receive notice of [the] deportation hearing." Farhoud v. INS, 122 F.3d 794, 796 (9th Cir. 1997). In that case, the notice was sent by certified mail to the address provided by the alien and acknowledged by someone at that address. Id. The alien claimed that he "did not actually and personally receive the notice of hearing." Id. That fact did not make a difference because, we said, "due process is satisfied if service is conducted in a manner 'reasonably calculated' to ensure that notice reaches the alien." Id. And the certified mailing was enough to meet this standard. Id.

In the following years, we repeatedly affirmed that mailing notice of immigration proceedings to an alien's last provided address is constitutionally sufficient. See, e.g., Urbina-Osejo v. INS, 124 F.3d 1314, 1317 (9th Cir. 1997) ("Notice of a deportation hearing sent by regular mail to the last address provided by the alien to the INS satisfies the requirements of constitutional due process[.]" (simplified)); United States v. Hinojosa-Perez, 206 F.3d 832, 837 (9th Cir. 2000) (holding that an alien's "attempt to claim prejudice from the failure to send notice to a place where he no longer lived is unpersuasive" given that he was "adequately warned of his responsibility to keep his address current"); Dobrota v. INS, 311 F.3d 1206, 1211 (9th Cir. 2002) (finding that the government satisfies due process "by mailing notice of [a] hearing to an alien at the address last provided").

We held the same in Popa v. Holder, 571 F.3d 890 (9th Cir. 2009), overruled on other grounds by Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019). In that case, the government mailed a notice to appear to the alien's last provided address in Nevada. Id. at 898. The alien then moved to California without informing the government, which later mailed a hearing notice to her Nevada address. Id. As a result, the alien didn't receive the notice and missed her removal proceeding, and an immigration judge ordered her removed in absentia. Id. at 893. None of this posed a due process problem. As we said, an alien "does not have to actually receive notice of a deportation hearing in order for the requirements of due process to be satisfied." Id. at 897. Instead, due process "is satisfied if service is conducted in a manner 'reasonably calculated' to ensure that notice reaches the alien." Id. (quoting Farhoud, 122 F.3d at 796). There, the alien's "right to due process was not violated because the Immigration Court mailed notice of her hearing to [her] last provided address." Id. at 898.

Here, our precedent shows that the government complied with due process. Rivera-Valdes provided the government with his Portland address in his asylum application. The government personally served him with the order and notice that instructed him to inform the government of any change to his address. Not only that, but an immigration official...