HUETE

Interim Decision #3144




                           MATitit OF HUETE
                          In Deportation Proceedings
                                    A-29570427

                   Decided by Board February 19, 1991

(1) In order to effect personal service of an Order to Show Cause and Notice of Hearing
  (Form I-221) sent by certified mail, return receipt requested, the receipt must be
  signed by the addressee or a responsible person at his or her address and returned.
(2) The respondent did not have a reasonable opportunity to be present at his
  deportation hearing where he was not personally served with the Order to Show
  Cause.
(3) The immigration judge did not err in terminating deportation proceedings based on
  his finding that the Order to Show Cause was not properly served where the certified
  mail return receipt was not signed and returned.
CHARGE:
Order: Act of 1952—Sec. 241(a)(2) [

 i(a)(2)I —Entered without inspection
ON BEHALF OF RESPONDENT:                              ON BEHALF OF SERVICE:
  Lenore A. Ceithaml, Esquire'                          Alan S. Rabinowitz
  862 Union Street, Suite B                             Assistant District
  San Diego, California 92101                           Counsel

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members


   In a decision dated April 13, 1990, the immigration judge terminated the deportation proceedings against the respondent based on his
finding that the Immigration and Naturalization Service had failed to
prove that the respondent had been personally served with the Order
to Show Cause and Notice of Hearing (Form I-221) under the
provisions of 

.5a(a)(2)(iv) (1990). 2 The Service has
appealed from that decision. The appeal will be dismissed.

    Counsel for the respondent filed a Notice of Entry of Appearance as Attorney or
Representative Before the Office of the Immigration Judge (Form EOIR-28) and
submitted an amicus curiae brief on appeal at the request of the immigration judge.
Counsel has bad no contact with the respondent.
  'By its terms, 

.5a(a) (1990), which defines the terms "routine service"
and "personal service," applies only to the "authorized means of service by the Service
on parties and on attorneys and other interested persons of notices, decisions, and other

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   The record reflects that on February 8, 1990, the Service issued an
Order to Show Cause against the respondent charging him with
deportability under section 241(a)(2) of the Immigration and Nationality Act, 

(a)(2) (1988), as an alien who entered without
inspection.; The Order to Show Cause was sent by certified mail,
return receipt requested, to the respondent at his last known address.
The respondent's address was obtained from an application that he
filed with the district director on March 21, 1989. The registered mail
return receipt was returned to the Service as unclaimed. Notice of the
respondent's master calendar hearing was sent by regular mail to the
same address. The respondent did not appear at the hearing.
    In his decision terminating the deportation proceedings, the immigration judge found that although the Service had mailed a copy of the
Order to Show Cause by certified mail, return receipt requested, in
accordance with the provisions of 

.5a(a)(2)(iv) (1990),
personal service was not effected because the respondent did not
actually receive the Order to Show Cause. The immigration judge
found that personal service by certified mail as provided in 

.5a(a)(2)(iv) (1990) is incomplete unless the respondent actually
receives the Order to Show Cause, as evidenced by the signed return
receipt. The immigration judge further noted that the respondent was
apparently not notified of his obligation to inform the Service of any
changes of address. The immigration judge concluded that proceeding
with an in absentia hearing would be a violation of due process, given
the respondent's unfamiliarity with the American legal system and his
lack of actual notice of the charges against him.
    On appeal, the Service contends that service of an Order to Show
Cause accomplished by mailing a copy by certified or registered mail,
return receipt requested, addressed to the respondent at his last known
address, complies with the provisions of 

.5a(a)(2)(iv)
(1990) for personal service of a notice. The Service asserts that 

.5a(b) (1990) provides that, whenever service by mail is
used, service is effective upon mailing. Citing 

.5a(b)
(1990), the Service argues that it is the act of mailing the Order to
papers ... in administrative proceedings before Service officers." We recently found
the definitions of "routine service" and "personal service" provided in 

.5a(a) (1990) applicable to those terms as used in 

(c) (1990),
which governs service of the Order to Show Cause in deportation proceedings. See
Matter of Peugnet, 

 (BIA 1991).
   3 A. Record of Deportable Alien (Form 1-213) included in the record is dated January
11. 1990, and it appears that an Order to Show Cause may have been issued on that
date. If that Order to Show Cause was served on the respondent, the Service could now
file it with the Office of the Immigration Judge to reinitiate proceedings. Alternatively,
the Service could reserve the February 8, 1990, Order to Show Cause on the respondent.

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Show Cause by certified or registered mail and not its receipt by the
respondent which constitutes personal service. The Service argues
further that since notice of the hearing was sent to the respondent at
the address he provided to the Service, he was given a reasonable
opportunity to be present at his hearing and that an in absentia hearing
should have been conducted. The Service contends that the respondent's failure either to claim the Order to Show Cause or to notify the
Service of his current address should not enable him to evade a
determination of his deportability.
   In her brief on appeal, counsel for the respondent relies in part on a
formal opinion by the Immigration and Naturalization Service
General Counsel, dated June 11, 1990, which provides that the Service
should not seek an in absentia deportation order if the United States
Postal Service was not able to deliver the Order to Show Cause to the
alien.4 Counsel for the respondent contends that it would be improper
and a violation of due process to enter an order of deportation where
the alien did not receive actual notice of the deportation proceedings.
   Section 242(b) of the Act, 

(b) (1988), provides, in
pertinent part:
  Determination of deportability in any case shall be made only upon a record made in
  a proceeding before a special inquiry officer, at which the alien shall have reasonable
  opportunity to be present.... Mho alien shall be given. notice, reasonable under all
  the circumstances, of the nature of the charges against him and of the time and place
  at which the proceedings will be held....
  The regulations implementing section 242 of the Act at 

(c) provide, in pertinent part, that
  [slervice of the order to show cause may be accomplished either by personal service
  or by routine service; however, when routine service is used and the respondent does
  not appear for hearing or acknowledge in writing that he has received the order to
  show cause, it shall be reserved by personal service.
For the purposes of stating the authorized means of service by the
Service on parties and on attorneys and other interested persons of
notices, decisions, and other papers in administrative proceedings
before Service officers, the term "personal service" is defined in 

.5a(a)(2) (1990). Such definition of personal service
includes: "Mailing a copy [of the notice] by certified or registered mail,
return receipt requested, addressed to a person at his last known
address." 

.5a(a)(2)(iv) (1990). The regulations at 

.5a(b) (1990) further provide: "Whenever a person has
the right or is required to do some act within a prescribed period after
the service of a notice upon him and the notice is served by mail, 3

 4 As noted in the Service reply brief, that opinion was withdrawn by the General
Counsel on July 13, 1990.

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days shall be added to the prescribed period. Service by mail is
complete upon mailing."
  Our review of the statute and pertinent regulations leads us to
conclude that the most reasonable interpretation of the provision for
service by certified mail, return receipt requested, is to require that the
certified mail receipt be signed by the respondent or a responsible
person at the respondent's address and returned to effect personal
service. Absent such a requirement, there is no meaningful distinction
between service by certified mail and service by regular mail. We note
that the alternative provisions for personal service listed in 

.5a(a)(2) (1990) each involve service upon a Person, rather than
an address.
   The Service incorrectly relies upon 

.5a(b) (1990) for
the proposition that service of the Order to Show Cause by certified
mail is effective upon mailing. That regulation pertains to the
computation of deadlines for responding to notices sent by mail It
does not define what service is required in order to initiate deportation
proceedings. The Service further implies that the respondent may have
refused to claim the Order to Show Cause. This allegation has no
support in the record, which merely reflects that notice of the certified
mail was left at the address provided by the respondent and that the
mail was not claimed. We find persuasive the reasoning of former
Immigration and Naturalization Service General Counsel William P.
Cook, who held in the June 11, 1990, formal opinion cited by counsel
for the respondent that an alien has not had a "reasonable opportunity
to be present" as required in section 242(b) of the Act where he or she
has not received the Order to Show Cause and consequently may not
even be aware that deportation proceedings have been instituted. We
conclude that the immigration judge did not err in terminating
proceedings based on his finding that the respondent was not properly
served with the Order to Show Cause where the certified mail receipt
was not signed and returned. Accordingly, the appeal will be dismissed.
  ORDER:        The appeal is dismissed.




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