Williams v. Mukasey

¶6GRABER, Circuit Judge:

¶7Petitioner Iyabo Williams, a Nigerian national, petitions for review of the Board of Immigration Appeals’ denial of her untimely motion to reopen. Petitioner was ordered deported following her conviction and sentencing for conspiracy to import a controlled substance in violation of 21 U.S.C. § 963 and conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846. Although Petitioner became subject to a final order of removal on February 18, 1994, she did not file her motion to reopen until November 5, 2004.

¶8Petitioner seeks reopening pursuant to the regulations implementing the United States’ obligations under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), Dec. 10, 1984, 1465 U.N.T.S. 85, 23 I.L.M. 1027. See Regulations Concerning the Conven*1042tion Against Torture (“CAT Regulations”), 64 Fed.Reg. 8478, 8482-83 (Feb. 19, 1999) (codified at various parts of 8 C.F.R.); 8 C.F.R. §§ 208.16-208.18 (1999).1 Those regulations, which were promulgated while Petitioner was incarcerated, provide that an alien who became subject to a final order of removal before March 22, 1999, could submit a motion to reopen proceedings for consideration of withholding or deferral of removal under CAT, but only if the motion were filed before June 21, 1999. 8 C.F.R. § 208.18(b) (1999).

¶9Petitioner argues that she was entitled to “actual notice” of the reopening procedures under CAT and that, as a result, publication of the CAT Regulations in the Federal Register was insufficient notice to afford her due process.2 On de novo review, Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.2004), we disagree. We publish this opinion to clarify that the general rules concerning adequacy of notice through publication in the Federal Register apply in the immigration context.

¶10Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), and its progeny provide the “appropriate analytical framework” for considering the adequacy of notice of government action. Dusenbery v. United States, 534 U.S. 161, 167-68, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002). Under that framework, “due process requires the government to provide ‘notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” Jones v. Flowers, 547 U.S. 220, 226, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006) (quoting Mullane, 339 U.S. at 314, 70 S.Ct. 652). As a general rule, “publication in the Federal Register is legally sufficient notice to all interested or affected persons regardless of actual knowledge or hardship resulting from ignorance.” Camp v. U.S. BLM, 183 F.3d 1141, 1145 (9th Cir.1999) (internal quotation marks omitted).

¶11Publication in the Federal Register may not be sufficient notice to a party when the published information concerns imminent government action that directly affects the party’s rights and that party’s interest in the government action is more than “purely speculative.” See Covelo Indian Cmty. v. Fed. Energy Regulatory Comm’n, 895 F.2d 581, 588 (9th Cir.1990) (per curiam) (addressing the sufficiency of notice through publication in the Federal Register of the Federal Energy Regulatory Commission’s (“FERC”) relicensing of a hydroelectric plant and addressing the plaintiffs contention that due process required actual notice). Here, Petitioner cannot establish that the government had anything more than speculative knowledge that she was eligible for CAT relief when the regulations were promulgated. See id. at 587-88 (explaining that the effect of *1043FERC’s actions on the plaintiff was “purely speculative” and that, even though the relicensing of the hydroelectric plant “might” affect the plaintiffs interests, it was “far from certain” that the value of the plaintiffs water and fishing rights would be diminished by FERC’s actions). Accordingly, publication of the CAT Regulations in the Federal Register provided Petitioner with the notice that due process required. See id. at 588 (rejecting the plaintiffs contention that publication in the Federal Register provided inadequate notice and that actual notice was required).

¶12To the extent that Petitioner also claims that publication in the Federal Register was “insufficient in law,” see 44 U.S.C. § 1507,3 that argument fails because the government had no independent legal duty to provide notice by a different method, see Camp, 183 F.3d at 1145 (holding that notice by publication was “insufficient in law” because the BLM had an “independent legal duty” to provide personal notice to Camp under then-applicable federal regulations). Petitioner suggests that publication in the Federal Register is “insufficient in law” simply because there are more effective methods of notice that are not particularly burdensome, such as circulation of notice among the prison population. But the availability of an alternative method of notice, regardless of its reasonableness, does not itself impose a legal obligation.

¶13PETITION FOR REVIEW DENIED.