ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

 

Case Name:
GARCIA V INS

Case Number:

Date Filed:

99-70206

08/22/00



FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

J. SACRAMENTO GARCIA; MARIA L.
GOMEZ GAMINO; NOEL C. GARCIA                          No. 99-70206
GOMEZ,
                                                     INS Nos.
Petitioners,
                                                     A75-019-202
v.                                                    A75-019-914
                                                     A75-019-913
IMMIGRATION AND NATURALIZATION
SERVICE,                                              OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted August 7, 2000

Filed August 22, 2000

Before: J. Clifford Wallace, Joseph T. Sneed, and
Mary M. Schroeder, Circuit Judges.

Per Curiam Opinion

_________________________________________________________________

_________________________________________________________________


COUNSEL

Donald Ungar, San Francisco, California, for the petitioners.

Quynh Vu, Office of Immigration Litigation, U.S. Depart-
ment of Justice, Washington, D.C., for the respondent.

_________________________________________________________________

                               10352


OPINION

PER CURIAM:

J. Sacramento Garcia, Maria L. Gomez Gamino, and Noel
C. Garcia Gomez, natives and citizens of Mexico, petition for
review of the Board of Immigration Appeals' ("BIA") deci-
sion affirming the immigration judge's ("IJ") denial of their
motion to reopen deportation proceedings conducted in absen-
tia. We have jurisdiction pursuant to 8 U.S.C. S 1105a(a).2 We
review the denial of a motion to reopen for abuse of discre-
tion. See Urbina-Osejo v. INS, 124 F.3d 1314, 1316 (9th Cir.
1997). We review de novo the BIA's " `determination of
purely legal questions regarding the requirements of the
Immigration and Nationality Act.' " Tedeeva v. INS, 88 F.3d
826, 827 (9th Cir. 1996) (quoting Ghaly v. INS , 58 F.3d 1425,
1429 (9th Cir. 1995). We deny the petition.

[1] We disagree with petitioners' contention that they
received inadequate notice of their hearing pursuant to 8
U.S.C. S 1252b(a)(2)(A). That section requires that "written
notice shall be given in person to the alien (or, if personal ser-
vice is not practicable, written notice shall be given by certi-
fied mail to the alien or to the alien's counsel of record, if
any)." Id.

[2] It is a longstanding principle that in "our system of rep-
resentative litigation . . . each party is deemed bound by the
acts of his lawyer-agent and is considered to have`notice of
_________________________________________________________________
2 The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 ("IIRIRA") repealed 8 U.S.C. S 1105a and replaced it with a new
judicial review provision codified at 8 U.S.C. S 1252. See IIRIRA
S 306(c)(1), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as
amended by Act of Oct. 11, 1996, Pub. L. No. 104-302, 110 Stat. 3656.
However, because the new review provision does not apply to petitioners
whose deportation proceedings commenced before April 1, 1997, this
court continues to have jurisdiction pursuant to 8 U.S.C. S 1105a. See
IIRIRA S 309(c)(1).

                               10353


all facts, notice of which can be charged upon the attorney.' "
Link v. Wabash R.R., 370 U.S. 626, 634 (1962) (quoting
Smith v. Ayer, 101 U.S. 320, 326 (1880)).

[3] Due process is satisfied if notice is served in a manner
"reasonably calculated" to ensure that it reaches the alien. See
Farhoud v. INS, 122 F.3d 794, 796 (9th Cir. 1997); Matter of
Barocio, 19 I. & N. Dec. 255, 259 (BIA 1985) (holding that
notice to the attorney of record constitutes notice to the peti-
tioner); 8 C.F.R. S 292.5(a) (stating that whenever alien is
required to be given notice, such notice shall be given to attor-
ney of record).

The Immigration and Naturalization Service personally
served the written notice on petitioners' counsel, in petition-
ers' presence, in court at the master calendar hearing. That
notice advised them of the next hearing date. When petition-
ers failed to appear at the next hearing, the IJ properly con-
ducted the in absentia deportation hearing. See 8 C.F.R.
S 3.26 (allowing in absentia hearing if IJ finds that notice of
the proceeding was provided by written notice to the applicant
or to the applicant's counsel of record). We conclude that
petitioners' claim of inadequate notice of the hearing is not
grounds for rescinding the IJ's in absentia deportation order.
See 8 U.S.C. S 1252b(c)(3)(B).

Any contention that the in absentia deportation order
should be rescinded due to ineffective assistance of counsel is
not before us. See 8 U.S.C. SS 1252b(c)(3)(A), (f)(2) (excep-
tional circumstances requiring recission of in absentia depor-
tation order).

We deny petitioners' motion to hold proceedings in abey-
ance.

PETITION FOR REVIEW DENIED.

                               10354


Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: