[00:00:01] Speaker 08:
Good morning, and welcome to the James R. Browning Courthouse here in San Francisco.

[00:00:07] Speaker 08:
It's my pleasure to welcome you all.

[00:00:10] Speaker 08:
We have a case set for en banc oral argument.

[00:00:15] Speaker 08:
It's the United States of America versus Leopoldo Rivera Valdez.

[00:00:20] Speaker 08:
If counsel's ready to proceed, you may come forward.

[00:00:27] Speaker 11:
May it please the Court.

[00:00:28] Speaker 11:
Steve Sadie for Leopoldo Rivera-Valdes.

[00:00:31] Speaker 11:
I hope to reserve seven minutes for rebuttal.

[00:00:34] Speaker 08:
We have three judges who are appearing not in person.

[00:00:38] Speaker 08:
We have Judge Gould on the screen, Judge Ikuta on the screen, and Judge Sanchez somewhere on the screen or by audio.

[00:00:49] Speaker 08:
Please proceed.

[00:00:50] Speaker 11:
Under the due process clause, the single standard for notice in all cases requires that the notice be reasonably

[00:00:59] Speaker 11:
calculated to reach the affected individual.

[00:01:02] Speaker 11:
In Jones, the Supreme Court held that when the government knows the notice was ineffective, that additional reasonable steps must be taken.

[00:01:13] Speaker 11:
Not a manhunt, not heroic efforts, but not nothing.

[00:01:21] Speaker 11:
The Jones standard has been applied in all contexts.

[00:01:24] Speaker 11:
It's been applied in vehicle towing, to privacy, to

[00:01:29] Speaker 11:
property issues to the license suspension.

[00:01:34] Speaker 11:
The narrow question here is whether there's a cutout as an exemption in the immigration context for this generally applicable due process rule.

[00:01:46] Speaker 07:
Have we ever in this circuit specifically held that Jones applies in the immigration context?

[00:01:53] Speaker 11:
I believe we have, Your Honor.

[00:01:54] Speaker 11:
In Williams, the court held that that was

[00:01:59] Speaker 11:
part of the analytical framework, and that's exactly what we're saying here, is it's part of the analytical framework for making a determination of whether the notice was reasonably calculated when they have actual knowledge that the notice was not affected.

[00:02:15] Speaker 10:
Council, so help me out with the record here.

[00:02:18] Speaker 10:
I'm looking at ER 158, your client's declaration.

[00:02:22] Speaker 10:
Yes.

[00:02:23] Speaker 10:
It talks about how he wasn't informed.

[00:02:27] Speaker 10:
The hearing had been scheduled.

[00:02:29] Speaker 10:
He never received notice.

[00:02:30] Speaker 10:
I don't see anything in the declaration.

[00:02:33] Speaker 10:
about where at the time they sent the notice to the address he had given, where he was living at that time or how they could have reached him.

[00:02:42] Speaker 10:
So am I correct, first of all, that his declaration doesn't say where he was then?

[00:02:47] Speaker 11:
That is correct.

[00:02:48] Speaker 10:
Is there anything in the record where your client proffered where he actually was

[00:02:55] Speaker 10:
in the several weeks between when he gave the address and when the in absentia hearing was held where he could have been reached?

[00:03:02] Speaker 10:
I think that what is shown there is that... I'm asking is there anything in the record where you or your client proffered where he exactly was during that time where the government could have found him?

[00:03:16] Speaker 11:
It was not proffered but there was evidence and the evidence was that the three mailings to that address were apparently received by him because he showed up

[00:03:25] Speaker 11:
in response to those contacts.

[00:03:28] Speaker 11:
And then what happened is that the next mailing went out and came back not deliverable at this address.

[00:03:38] Speaker 11:
So that there was something wrong with the address.

[00:03:41] Speaker 10:
But he never put in anything in the record that says at the time those were returned undeliverable where exactly he was?

[00:03:49] Speaker 11:
No, that was the inference from having received

[00:03:55] Speaker 11:
the mail at that address.

[00:03:57] Speaker 10:
And when it said, not deliverable as addressed... He could have told us in the declaration, had he been living there, he could have said that, right?

[00:04:06] Speaker 03:
That is not in that statement, Your Honor.

[00:04:08] Speaker 03:
Counsel, I know most of the questions you're going to get today are probably going to be about Jones.

[00:04:14] Speaker 03:
I want for a moment to assume arguendo that Jones does apply and to focus your attention on 8 USC 1326 D as the Supreme Court did in Palomas Santiago.

[00:04:27] Speaker 03:
Yes, Your Honor.

[00:04:27] Speaker 03:
As you know, in that case there was a three-part test, if you will,

[00:04:32] Speaker 03:
of what your client would need to prove in order to get out from under his underlying conviction basically.

[00:04:42] Speaker 03:
Again, arguing though, assuming for a moment Jones applies, what's your best argument that your client can show that he meets the other parts of the test?

[00:04:51] Speaker 03:
I'm struggling with how he can do that.

[00:04:53] Speaker 03:
So help me, would you please?

[00:04:54] Speaker 11:
So your honor, the position was asserted at the district court level on all three

[00:05:02] Speaker 11:
prongs of the 1326D, and they were asserting that, for example, under the voluntary departure, that there was a plausible basis for receiving voluntary departure.

[00:05:13] Speaker 11:
But I think it's important for this court in making a determination of how to proceed, if you look at the supplemental excerpt of record at 30, the district court asked the prosecutor, do I need to make any other decisions in this case once I'd make a decision about the due process clause?

[00:05:31] Speaker 11:
and the answer was no.

[00:05:33] Speaker 03:
So that's exactly what's happened.

[00:05:34] Speaker 03:
The district court didn't really get into it.

[00:05:36] Speaker 03:
Exactly.

[00:05:37] Speaker 03:
So I gather you would be saying if we were to agree with you that Jones applies that we should send this back to the district court to in the first instance make the determination that Paloma Santiago says has to be made.

[00:05:52] Speaker 03:
Is that correct?

[00:05:53] Speaker 11:
That is exactly what we've asked for and it's completely consistent with this court's

[00:05:59] Speaker 11:
role as a court of review, not a court of first instance.

[00:06:04] Speaker 06:
Counsel, I want to follow up on Judge Bennett's question about sort of any evidence in the record with respect to where your client might have been located.

[00:06:13] Speaker 06:
And like the district court doesn't sound like went through the various elements under 1326, the district could also do an analysis under Jones with respect to

[00:06:24] Speaker 06:
what reasonable additional steps might have been necessary or effective because the district court didn't even apply Jones in its consideration of the due process issue, correct?

[00:06:38] Speaker 11:
Yes.

[00:06:40] Speaker 06:
But there was no opportunity to develop a record with respect to where your client might have been located or provided notice with respect to the additional steps

[00:06:52] Speaker 11:
I believe the position for the government and the district court was, we sent a certified mail to the address you gave us, nothing else has to happen.

[00:07:02] Speaker 11:
And that's precisely what Jones says is insufficient.

[00:07:05] Speaker 11:
Something more has to happen.

[00:07:07] Speaker 07:
And there are except Jones is that the citizen.

[00:07:10] Speaker 07:
It was his property.

[00:07:12] Speaker 07:
A lot of things here.

[00:07:13] Speaker 07:
Your client, if I'm not mistaken in the record, he every time he would show up from when he got information that when he thought he was going to get a work permit or he thought he was get something, he shows up from that address.

[00:07:28] Speaker 07:
And then when they get them there, he gives some sort of false identification.

[00:07:33] Speaker 07:
And then they, at that point, read them in English and in Spanish, you're going to be deported.

[00:07:40] Speaker 07:
And they put them on notice that that's going to happen.

[00:07:43] Speaker 07:
And you'll get in the mail that date and time that it's going to happen.

[00:07:50] Speaker 07:
you have to keep us notified of your address.

[00:07:53] Speaker 07:
And then they send it to that address.

[00:07:55] Speaker 07:
They never get any change of address from him.

[00:07:57] Speaker 07:
So your client knows he's not here legally.

[00:08:02] Speaker 07:
He knows that they are going to deport him.

[00:08:05] Speaker 07:
And he knows he has to keep his address up.

[00:08:08] Speaker 07:
But incidentally, he always showed up when it was a good thing for him to show up to get something at that address.

[00:08:15] Speaker 07:
So what else could be done?

[00:08:19] Speaker 11:
So I think there are a number of responses.

[00:08:22] Speaker 11:
But the first one is, you premised the question on he and Jones had involved a citizen.

[00:08:28] Speaker 11:
The due process clause, it's persons.

[00:08:30] Speaker 11:
And the Supreme Court has repeatedly held that persons in the United States are equally covered regardless of their immigration status.

[00:08:40] Speaker 11:
And that's for very good reason, because a rule that we were talking about here applies to all situations where a person could be facing

[00:08:49] Speaker 11:
deportation to a country where they are going to be facing torture or death.

[00:08:54] Speaker 11:
They could be losing permanent resident alien status or even not be able to present a derivative citizenship.

[00:09:02] Speaker 11:
They'd have their family interrupted.

[00:09:04] Speaker 11:
They would be separated from their spouse.

[00:09:06] Speaker 11:
This is a big deal to be in.

[00:09:08] Speaker 11:
And he's not facing necessarily deportation because as we were asserting in the district court, the court

[00:09:15] Speaker 11:
It's not saying you are going to be deported.

[00:09:18] Speaker 11:
It's come for a removal hearing where you will have a hearing.

[00:09:21] Speaker 11:
At that hearing, you can ask for various remedies, for example, if there is something.

[00:09:26] Speaker 07:
But he knows he's being deported.

[00:09:28] Speaker 07:
And how long does he wait before he brings this collateral attack up?

[00:09:33] Speaker 07:
12 years?

[00:09:34] Speaker 11:
Yes.

[00:09:35] Speaker 07:
Or longer?

[00:09:36] Speaker 11:
Yes.

[00:09:37] Speaker 11:
But he's not being told that he's going to be deported.

[00:09:40] Speaker 11:
He's saying that he has a removal hearing.

[00:09:43] Speaker 11:
And at the removal hearing, he would have the

[00:09:45] Speaker 11:
ability to ask for voluntary departure instead of being removed.

[00:09:48] Speaker 10:
But he was told personally that the hearing's coming up and we are going to send you information at the address you have given us.

[00:09:59] Speaker 10:
He was told that in English and Spanish, right?

[00:10:01] Speaker 11:
Yes.

[00:10:02] Speaker 10:
Was anything like that in Jones?

[00:10:06] Speaker 11:
Yes.

[00:10:07] Speaker 11:
In Jones at pages 231 and 232, they specifically talked about whether the person had

[00:10:14] Speaker 11:
a legal obligation to keep their address current.

[00:10:17] Speaker 11:
And they also referred to a phrase that I think is really important, inquiry notice.

[00:10:21] Speaker 11:
They said, inquiry notice doesn't make a difference.

[00:10:23] Speaker 11:
Well, why does it make a difference?

[00:10:25] Speaker 10:
Because of... But there was no personal contact between the taxing authorities and the property owner, right?

[00:10:34] Speaker 10:
Nobody spoke to him.

[00:10:35] Speaker 10:
Nobody told him what was going to happen.

[00:10:37] Speaker 10:
Nobody informed him that this is on the horizon.

[00:10:42] Speaker 10:
and you better watch out.

[00:10:43] Speaker 11:
But all those same considerations were considered by the Jones Court in the context of the tax situation because it's the reasoning and the reasoning that Jones says is a party's ability to take steps to safeguard its interests does not relieve the state of its constitutional obligation.

[00:10:59] Speaker 04:
So one thing that Jones doesn't get at is motivation and I'm just wondering to what extent if any

[00:11:05] Speaker 04:
should we be considering a person's motivation to receive notice or not receive notice?

[00:11:12] Speaker 04:
How should that factor in into Jones?

[00:11:13] Speaker 04:
Or does it factor in?

[00:11:14] Speaker 11:
I think that it is a overall rule that applies in all situations.

[00:11:19] Speaker 11:
It applies whether you're trying to remove from the United States somebody who's completely virtuous or somebody who's completely evil and all the human beings in between.

[00:11:29] Speaker 11:
It's one rule.

[00:11:31] Speaker 11:
And that one rule should apply.

[00:11:32] Speaker 11:
And then the question becomes,

[00:11:35] Speaker 11:
what are the reasonable steps that could be taken.

[00:11:37] Speaker 11:
And in Jones, of course, we heard, well, sent to another address, sent to a used occupant, posted on the door.

[00:11:44] Speaker 11:
And in Echeverria, they said, maybe look at the A file.

[00:11:49] Speaker 11:
And in this case, if you Google the address, the address shows, oh, it's not North Cleveland, it's Northeast Cleveland with a map showing it's the

[00:11:59] Speaker 00:
Division line Northeast and North get back to a point the judge decide was raising which is this wasn't raised below And so I'm like why shouldn't we treat this issue as forfeited I think you acknowledge that the Jones question and whether the Jones rule applies to this context was never raised to the district court you agree with that I would not agree entirely because I would say that the position taken was that as a matter of due process the rule the service that did

[00:12:29] Speaker 11:
was not received was insufficient under the due process clause.

[00:12:32] Speaker 00:
That was an actual notice.

[00:12:33] Speaker 00:
It seems to me that was an actual notice argument that we didn't actually get it and therefore due process not satisfied.

[00:12:39] Speaker 00:
And the law doesn't support that idea and the district court was correct to reject that idea.

[00:12:44] Speaker 00:
So what I'm trying to figure out is you did not raise Jones below.

[00:12:48] Speaker 00:
Who should bear the burden for that failure?

[00:12:52] Speaker 00:
Council or the court for not finding the case?

[00:12:54] Speaker 11:
I would say that there's two cases that I would say that answer your question.

[00:12:58] Speaker 11:
One is Elder versus Holloway, where the Supreme Court said that a court of appeals should consider all relevant precedents, not simply those cited or discovered by the district court.

[00:13:07] Speaker 11:
And the other is Puerto versus United States from this court, in which the court said an argument is typically elaborated more articulately with more extensive authorities on appeal than in the less focused and frequently more

[00:13:21] Speaker 11:
time-pressured environment at the trial court.

[00:13:23] Speaker 00:
Well, the reason I'm following up on Judge Desai's point is she's accurately pointed out that because it wasn't raised below, a record was not developed.

[00:13:30] Speaker 00:
So, I mean, we have some discretion in this area about forfeiture, and it seems to me that there are some factors present here that counsel against proceeding in this case, because it wasn't raised to the extent that the district court could develop the necessary record to figure out what reasonable notice might be available in this context.

[00:13:48] Speaker 11:
I think that the record reflects that the

[00:13:51] Speaker 11:
Trial counsel completely presented a due process argument that the due process that was used, a certified mail that was returned undeliverable, was insufficient.

[00:14:03] Speaker 11:
That is exactly what Jones supports.

[00:14:07] Speaker 11:
And that the fact that the case was not particularly cited does not mean that there was any forfeiture that occurred.

[00:14:12] Speaker 11:
It was completely presented as a due process issue.

[00:14:16] Speaker 11:
And I understand that the court could remand

[00:14:20] Speaker 11:
and how those issues considered.

[00:14:22] Speaker 02:
So when Jones, when the court said that something more should have been done, the first example of something more that they suggested was sending a follow-up notice by regular mail after the certified mail was returned, do you agree that that wouldn't really make sense in this context because the government's motion had been sent by regular mail and that, too, had been returned?

[00:14:42] Speaker 02:
But it's important why it was returned.

[00:14:45] Speaker 11:
It was returned as not deliverable as addressed.

[00:14:48] Speaker 11:
There was something wrong with the address.

[00:14:50] Speaker 11:
And if you take one look at a map in Oregon, you'll see that Cleveland is right on the border of northeast and north Portland.

[00:15:02] Speaker 02:
But Jones specifically says, you know, looking in the phone book and other government records is an example of something they don't have to do.

[00:15:11] Speaker 02:
So how is, you know, looking at Google Maps any different from that?

[00:15:17] Speaker 11:
It took me 30 seconds when I saw it in the record that on page 166 that the defense was saying, hey, that's no such thing as that address, that some postal carriers might deliver it, others would look at it and say, hey,

[00:15:31] Speaker 11:
That doesn't exist.

[00:15:32] Speaker 11:
I'm going to return it as non-deliverable.

[00:15:35] Speaker 11:
But it means that with very minor further steps, you can figure out that there is a problem.

[00:15:41] Speaker 02:
But the phone book is, I mean, I guess they still had them back in 2006.

[00:15:46] Speaker 02:
But the phone book is pretty easy to look at, too.

[00:15:49] Speaker 02:
And so what do you think is the principle that the court had in mind when they said that that's something the government doesn't need to do?

[00:15:56] Speaker 11:
I think, for example, in Echeverria, where they said looking

[00:16:01] Speaker 11:
looking elsewhere in the A file, for example, for another address, that that's something that is not onerous.

[00:16:09] Speaker 11:
It's not too much to ask when you have so much at stake and you have so much to lose by the person not having actual notice.

[00:16:17] Speaker 11:
And we know that the person did not receive actual notice.

[00:16:21] Speaker 08:
And in Joe's, did they send it just by regular mail?

[00:16:24] Speaker 11:
Was that suggestion they said it by certified mail and it was returned with exactly the same way it was returned in this case and What did the court in Jones suggests that may be saying that regular mail?

[00:16:38] Speaker 11:
and what the court and Jones said was look at and Certified mail has advantages because you can have somebody sign it you have proof that the person received it

[00:16:47] Speaker 11:
But there's also detriment because the person might not be there, whereas if you send it by regular mail to the northeast, 47 Cleveland Avenue, and it gets received, then the reasonable additional steps have been taken and the due process would be complied with.

[00:17:05] Speaker 00:
I guess I don't understand that point about the address being perhaps slightly off in this context because the very first notice that gets sent out about, hey, your work authorization has been approved, was sent to the same address.

[00:17:16] Speaker 00:
And we know he got it because he showed up to get his work authorization.

[00:17:19] Speaker 00:
So why would, in that context, why would the government have any reason to think that the address they were using was wrong when it worked the first time?

[00:17:25] Speaker 11:
Because if you look at the envelope that's in the record, it says, not deliverable as addressed.

[00:17:33] Speaker 11:
It was deliverable as addressed before, but now it's not.

[00:17:36] Speaker 11:
That's not saying that it was refused or anything.

[00:17:39] Speaker 11:
It's saying that the postman, the post workers were not able to deliver the mail because it's not an address.

[00:17:46] Speaker 10:
And it's not an address.

[00:17:47] Speaker 10:
There's no question that the address was the address your client provided, right?

[00:17:51] Speaker 10:
Yes.

[00:17:52] Speaker 10:
They didn't put down a different address than the one he provided them.

[00:17:58] Speaker 11:
That is correct.

[00:17:59] Speaker 10:
And the one that caused him, as Judge Forrest said, to show up.

[00:18:03] Speaker 11:
Yes.

[00:18:04] Speaker 11:
Slightly different.

[00:18:06] Speaker 11:
There was a spelling error at how he spelled Cleveland, but apparently the postal workers were able to deal with that.

[00:18:12] Speaker 07:
So what was the date of the in absentia hearing?

[00:18:16] Speaker 11:
That was on August 12, 1994.

[00:18:19] Speaker 07:
And he was removed in 2006?

[00:18:22] Speaker 11:
Yes.

[00:18:23] Speaker 07:
And did he challenge that order when he was removed at that time?

[00:18:27] Speaker 11:
No.

[00:18:28] Speaker 07:
Could he have?

[00:18:29] Speaker 11:
No.

[00:18:31] Speaker 11:
I think it was four days.

[00:18:33] Speaker 11:
between the time that he was arrested and the time that he was gone.

[00:18:37] Speaker 08:
Counsel, wasn't Avenue missing from the address?

[00:18:40] Speaker 08:
Wasn't there Avenue that was or Avenue was added or Avenue was missing?

[00:18:45] Speaker 08:
Can you talk about that?

[00:18:47] Speaker 11:
There's a reference where one of the addresses has a P after it and there's but I think the the what I see the biggest issue is that Cleveland Avenue

[00:19:02] Speaker 11:
is one that runs north and south and is northeast all the way, and is the boundary line.

[00:19:09] Speaker 08:
Would Avenue need to have been put on the address?

[00:19:16] Speaker 08:
And was it?

[00:19:19] Speaker 11:
I don't know, Your Honor.

[00:19:22] Speaker 08:
Because it looks like there's some discrepancy.

[00:19:25] Speaker 08:
between the address and then its dating avenue.

[00:19:29] Speaker 08:
And so it just seemed like somebody could have looked through the files to note that discrepancy and maybe the reasonable step might have been just to send it by regular mail to where he had received it previously.

[00:19:43] Speaker 11:
And that's kind of where we are on the lack of any further step.

[00:19:49] Speaker 11:
What the position was is once we send it and get back sort of,

[00:19:53] Speaker 11:
Not undeliverable that's the end of it.

[00:19:57] Speaker 11:
We don't have to do anything further What the further reasonable steps can just be looking at the file or taking?

[00:20:04] Speaker 06:
It's not saying that we're going to have to run out and do extraordinary things in order to try to track down Really had to have done anything more other than perhaps sending the notice by regular mail because it sounds to me that your argument is that when when I

[00:20:21] Speaker 06:
The original notice was sent by regular mail, not the notice for the removal hearing, but a prior notice was sent by regular mail.

[00:20:27] Speaker 06:
He received it.

[00:20:28] Speaker 06:
When it was sent by certified mail, there was a problem in terms of the delivery.

[00:20:32] Speaker 06:
Perhaps they have a different system of delivering under certified mail than regular mail.

[00:20:37] Speaker 06:
So would any research have had to been conducted at that point?

[00:20:41] Speaker 06:
What if, you know, is the reasonable additional step that you're talking about?

[00:20:46] Speaker 06:
What is it?

[00:20:46] Speaker 06:
What is the logical conclusion to what you're requesting in terms of that additional

[00:20:51] Speaker 06:
reasonable step.

[00:20:53] Speaker 11:
There are a number of them.

[00:20:54] Speaker 11:
One of them is simply to send it by regular mail.

[00:20:57] Speaker 02:
But they already sent the motion by regular mail five days earlier to the same address, right?

[00:21:02] Speaker 02:
Right.

[00:21:03] Speaker 11:
But some postal workers were looking at it and saying, this doesn't exist so I don't have to do anything.

[00:21:08] Speaker 11:
And other postal workers delivered the first three letters.

[00:21:11] Speaker 11:
So I think it's reasonable to say, OK, let's give that a try.

[00:21:15] Speaker 11:
We know that those first three letters were received.

[00:21:17] Speaker 11:
There is a real address.

[00:21:19] Speaker 11:
It's just not

[00:21:20] Speaker 11:
properly designated for the postal services purposes, because it's northeast Portland, not north Portland.

[00:21:26] Speaker 06:
Okay, so what else?

[00:21:27] Speaker 06:
They could have sent it by regular mail.

[00:21:29] Speaker 11:
Jones suggests posting it to the House, sending it to Occupant, and Echeverria says check the A file.

[00:21:40] Speaker 11:
And in this particular case, where we have actual knowledge of the immigration service, that this has been returned with an address problem,

[00:21:49] Speaker 11:
taking some basic check to see what was wrong with the address.

[00:21:53] Speaker 10:
What about the one that came back as unclaimed?

[00:21:58] Speaker 10:
There's one that says undeliverable and one that says unclaimed.

[00:22:04] Speaker 10:
I'm looking at ER 131.

[00:22:06] Speaker 11:
I believe that the undeliverable was sandwiched between two

[00:22:17] Speaker 11:
that came back with the not deliverable as addressed.

[00:22:21] Speaker 10:
I see a not deliverable as addressed at ER 137 and an unclaimed at ER 131.

[00:22:28] Speaker 11:
Yeah.

[00:22:29] Speaker 11:
And unclaimed, we don't know what that means and as far as whether that was correctly sent to an address, we don't know.

[00:22:40] Speaker 08:
Would you like to reserve the balance of your time?

[00:22:46] Speaker 11:
Yes, thank you.

[00:23:07] Speaker 05:
Good morning.

[00:23:07] Speaker 05:
May it please the court, Sarah Barr appearing on behalf of the United States.

[00:23:12] Speaker 05:
Jones has no bearing in this case for two reasons.

[00:23:15] Speaker 05:
First, the defendant received the actual notice of the initiation of his deportation proceedings that was lacking in Jones.

[00:23:24] Speaker 05:
And second, the nature of deportation and the statutory scheme governing in absentia orders of removal and rescission of those in absentia orders of removal ensure

[00:23:36] Speaker 05:
that the alien will always know about the impending deprivation, the deportation, before it actually happens, and will have the opportunity to be heard through a motion to rescind.

[00:23:49] Speaker 02:
Could I ask you just to clarify the governing legal premise at the outset?

[00:23:54] Speaker 02:
Does the United States agree with the proposition that the due process clause applies to everyone who is physically present within the sovereign territory of the United States?

[00:24:07] Speaker 05:
Yes.

[00:24:09] Speaker 05:
The government has never argued in this case that due process does not apply, that the defendant was not entitled to have a notice reasonably calculated to reach him.

[00:24:19] Speaker 05:
That has never been our argument.

[00:24:20] Speaker 05:
The question in this case is what does it mean to be reasonably calculated, right?

[00:24:26] Speaker 05:
Was the court, once the hearing notice was returned, required to take additional steps?

[00:24:31] Speaker 08:
So you agree that Jones applies?

[00:24:34] Speaker 05:
We would, no, we do not believe that Jones applies because Jones, the problem in Jones was that he never received any notice that the government was starting a proceeding against him, right?

[00:24:46] Speaker 05:
Jones pulled through the maligned due process requirement that there must be notice of the initiation of the pendency of a proceeding and an opportunity to proceed, or the opportunity to object.

[00:24:57] Speaker 05:
So what was missing in Jones,

[00:25:00] Speaker 05:
was the notice saying, hey, we're going to start a tax sale against you right now, or we're going to start delinquency proceedings.

[00:25:07] Speaker 05:
We are alleging that you are delinquent in your taxes.

[00:25:10] Speaker 05:
You have rights.

[00:25:11] Speaker 05:
You may redeem your property, right?

[00:25:13] Speaker 05:
But if you fail to redeem your property, it's going to be sold.

[00:25:17] Speaker 05:
That was the notice that was missing in Jones.

[00:25:20] Speaker 05:
The defendant here received that equivalent notice.

[00:25:23] Speaker 05:
He received in person and read to him in Spanish the order to show cause that told him, hey, the government is starting deportation proceedings against you.

[00:25:32] Speaker 05:
You have rights in those proceedings.

[00:25:34] Speaker 05:
You're going to have a hearing.

[00:25:35] Speaker 05:
The immigration court is going to send you notice of that hearing, and it's going to send you notice to the address you provide.

[00:25:41] Speaker 05:
You must give us your address for that specific purpose in these specific proceedings, right?

[00:25:48] Speaker 01:
Otherwise... This is Judge Sanchez.

[00:25:52] Speaker 01:
Can I ask you to...

[00:25:54] Speaker 01:
Distinguish Jones for me then, because one of the arguments in Jones about inquiry notice was that the taxpayer, a property holder, is on inquiry notice that his property is subject to government taking if he doesn't pay his taxes.

[00:26:10] Speaker 01:
So while there isn't a direct communication that there might be a tax sale,

[00:26:18] Speaker 01:
Didn't the Supreme Court in Jones contemplate this type of argument that someone should know that if you don't pay your taxes, you might be subject to forfeiture of your property, and the court rejected it?

[00:26:30] Speaker 05:
I would disagree that the context here is the same.

[00:26:33] Speaker 05:
So what the court in Jones contemplated was a statute that said, hey, everybody out there in Arkansas, you're required to keep your address updated, and hey,

[00:26:44] Speaker 05:
tax division, you have to send by certified mail notice of the tax law.

[00:26:50] Speaker 05:
And the Supreme Court said that by failing to abide by that statutory requirement to keep your address updated, a person does not forfeit their constitutional due process rights.

[00:27:08] Speaker 05:
That's not the issue here.

[00:27:10] Speaker 05:
The question here is whether the defendant forfeited his right to have the court send notice to a different address when he was told you need to keep the court updated of your address for this specific purpose.

[00:27:25] Speaker 08:
What's your best case for that proposition?

[00:27:31] Speaker 05:
My best case would be Malane, which is the case that Jones

[00:27:36] Speaker 05:
brings through, right?

[00:27:37] Speaker 05:
Malane says that due process in notice requires informing a person that proceedings are going to be initiated and giving them the opportunity to object.

[00:27:52] Speaker 00:
Not giving them... I mean, are you saying, so in immigration you get the notice of initiation of proceedings and then normally you get a different notice with the time and place of your hearing.

[00:28:00] Speaker 00:
Are you saying that due process only applies to the first thing and not the second?

[00:28:03] Speaker 00:
that there is no right to actually know when your hearing's going to happen?

[00:28:07] Speaker 05:
Right.

[00:28:07] Speaker 05:
So what happens here is the statutory scheme governing deportation proceedings does exactly what Jones asks it to do, right?

[00:28:17] Speaker 05:
Jones, so let's take a step back.

[00:28:19] Speaker 00:
I'm not sure you're answering my question.

[00:28:21] Speaker 00:
Maybe, OK.

[00:28:24] Speaker 08:
So I just go to the last part.

[00:28:26] Speaker 08:
So do you think there's a due process right to know the date and time of a hearing?

[00:28:31] Speaker 05:
Uh, there's a due process right to have the date and time of the hearing reasonably calculated to be sent to you.

[00:28:39] Speaker 05:
And if there is some failure, right, here's where the statutory scheme comes in.

[00:28:43] Speaker 06:
So are you arguing that, that you can forfeit your constitutional right by not complying with the statutory requirements such as updating your address?

[00:28:51] Speaker 05:
No, not, I am saying when you receive the order to show cause like the defendant did here,

[00:28:57] Speaker 05:
telling him what his obligations are, there is an expectation of diligence under the law, which Malane very explicitly makes clear.

[00:29:06] Speaker 05:
And that expectation of diligence applies to both parties.

[00:29:10] Speaker 05:
It applies to the government.

[00:29:11] Speaker 05:
It has to do what it says it's going to do.

[00:29:13] Speaker 05:
And it applies to the person, the defendant here in this case.

[00:29:16] Speaker 03:
Counsel, from my perspective, you seem to be arguing, once you have the due process right, it's been had in this case.

[00:29:26] Speaker 03:
Before we get to that, I want to

[00:29:28] Speaker 03:
get back to whether Jones applies.

[00:29:30] Speaker 03:
The Fifth Circuit in Echevarria versus Pitts specifically applied Jones to immigration proceedings.

[00:29:39] Speaker 03:
Why should we not adopt the reasoning of the Fifth Circuit as to that?

[00:29:42] Speaker 03:
Not in terms of how it applies in this case, but just start with does Jones apply?

[00:29:48] Speaker 05:
Sure.

[00:29:48] Speaker 05:
So we would disagree that Echevarria applied in the immigration context.

[00:29:55] Speaker 05:
And I think we need to be careful of what the term immigration context means.

[00:30:00] Speaker 05:
Here we're talking about the notice of deportation here in context.

[00:30:04] Speaker 05:
Echeverria was a property case.

[00:30:06] Speaker 05:
It was just like Jones, so it makes sense that Jones applied there, because it was about the taking of property without the person ever knowing, right?

[00:30:15] Speaker 05:
Jones says actual notice is not required, but the government has to try hard to increase the likelihood that actual notice would be made.

[00:30:23] Speaker 03:
That was the issue in Echeverria.

[00:30:24] Speaker 03:
So are you saying then, my colleagues, several have raised the point,

[00:30:29] Speaker 03:
You seem to agree that there are due process rights here.

[00:30:34] Speaker 03:
You want to argue about whether they've been appropriately given to the petitioner in this case, but why are you so reluctant to extend Jones?

[00:30:44] Speaker 03:
Obviously, if you accept that Jones is there, there's a framework and either we or a district court can analyze as you see we've already begun to do whether

[00:30:56] Speaker 03:
The petitioner in this case has received all the due process rights to which he's entitled.

[00:31:01] Speaker 03:
Why is the government so resistant to saying that the concept of Jones, the due process concept, does apply in immigration?

[00:31:09] Speaker 03:
You just have to apply the individual facts to the case.

[00:31:12] Speaker 03:
You're saying if you apply them in this case, he still loses.

[00:31:15] Speaker 03:
What's wrong with that?

[00:31:16] Speaker 05:
Sure.

[00:31:18] Speaker 05:
So Jones does not hold

[00:31:23] Speaker 05:
that additional reasonable steps are required for notice under any circumstances in any case, right?

[00:31:31] Speaker 05:
Jones says that it is a case-specific, fact-specific inquiry.

[00:31:36] Speaker 05:
We have to consider the nature of the case, the interests of the parties, and any unique information known about the intended recipient.

[00:31:44] Speaker 03:
And why wouldn't that apply in this case?

[00:31:45] Speaker 03:
How does that hurt the government?

[00:31:47] Speaker 05:
Right.

[00:31:47] Speaker 05:
So going back to what I started to say about the statutory scheme here,

[00:31:51] Speaker 05:
The statutory scheme governing notice and deportation proceedings is very different from the statutory scheme that was at issue in Jones.

[00:31:59] Speaker 05:
And that scheme contemplates already all of those things.

[00:32:03] Speaker 05:
It contemplates the interests of the party.

[00:32:06] Speaker 05:
It contemplates that there might be a failure of notice, and it gives an escape hatch to every single alien before the deprivation happens.

[00:32:16] Speaker 10:
Council, I understand the government is arguing

[00:32:19] Speaker 10:
that overall Millane applies, right?

[00:32:23] Speaker 10:
Right.

[00:32:23] Speaker 10:
And that Jones was applying Millane.

[00:32:26] Speaker 09:
Correct.

[00:32:26] Speaker 10:
And that Jones and Millane both say you look at the specific facts and circumstances before you which includes the statutory scheme.

[00:32:36] Speaker 10:
Yes.

[00:32:36] Speaker 10:
And to the extent Jones provides insight to us as to how one applies Millane, we should look at what the court said in Jones, right?

[00:32:47] Speaker 10:
Sure.

[00:32:48] Speaker 10:
The government is saying Jones like Malin was not setting out any type of bright line rule except essentially balancing the interest of the state against the individual interest sought to be protected and you need to be looking at whether the notice in the particular case is reasonably calculated.

[00:33:07] Speaker 06:
Precisely.

[00:33:08] Speaker 06:
And how do you square your argument with the language in Jones that specifically says

[00:33:15] Speaker 06:
We've required the government to consider unique information about an intended recipient, regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case.

[00:33:24] Speaker 05:
Right.

[00:33:25] Speaker 05:
Because, again, the statutory scheme in Jones that they were looking at, all that it required was certified mail to be sent to the Address of Record.

[00:33:35] Speaker 05:
And the Supreme Court in Jones

[00:33:39] Speaker 05:
wasn't saying that no statute could ever have due process built in.

[00:33:44] Speaker 05:
It had a footnote with a giant string site of other states that had tax provisions that would have met due process.

[00:33:51] Speaker 05:
It's just that in that case, it wasn't quite enough.

[00:33:54] Speaker 05:
So we can look to the statutory scheme here.

[00:33:56] Speaker 05:
And this court has held repeatedly that the deportation notice scheme is a fail safe mechanism for due process.

[00:34:07] Speaker 09:
Can I ask a question here?

[00:34:09] Speaker 09:
Yes.

[00:34:10] Speaker 09:
Sorry.

[00:34:10] Speaker 09:
Sorry that I'm zooming in.

[00:34:11] Speaker 09:
But this is about the application of Fifth Amendment due process to an immigration scenario.

[00:34:21] Speaker 09:
And I thought the Supreme Court had held that inadmissible or excludable aliens, rather than deportable aliens, were not entitled to Fifth Amendment due process, but only what Congress provided.

[00:34:37] Speaker 09:
Isn't that correct?

[00:34:39] Speaker 05:
That is true, yes.

[00:34:40] Speaker 05:
The Supreme Court has held that aliens are entitled to due process, but what that means may be different depending on the proceeding.

[00:34:48] Speaker 05:
And excludable aliens or aliens in exclusion proceedings are entitled only to the process that Congress provides.

[00:34:56] Speaker 09:
So you're saying that Mr. Rivaldes was deportable.

[00:35:01] Speaker 09:
So for that category of aliens, the due process clause applies.

[00:35:06] Speaker 09:
Is that right?

[00:35:09] Speaker 05:
We would agree that the due process clause applies here in the deportation proceedings.

[00:35:16] Speaker 09:
And he was deportable rather than excludable or admissible, because I know this all happened in the 90s, right?

[00:35:23] Speaker 09:
That's correct, yes.

[00:35:24] Speaker 09:
So those distinctions made a difference.

[00:35:26] Speaker 09:
But you're just saying he was deportable and the Supreme Court has made clear that you're entitled to due process if you're deportable.

[00:35:35] Speaker 09:
That is correct, yes.

[00:35:37] Speaker 09:
OK, thank you.

[00:35:39] Speaker 02:
Did I understand you to say just now that for excludable aliens, it's your view that the due process clause doesn't provide any greater protection than what Congress has chosen to provide?

[00:35:49] Speaker 05:
Well, the Supreme Court held a couple of years ago in Theresegion, I'm not quite sure how to pronounce the case, that an alien in

[00:36:04] Speaker 05:
expedited removal, excuse me, which is the kind of the post-IRAIRA version of exclusion proceedings is entitled to only that process that Congress provides because they are sort of assimilated to the position of an alien knocking at the door at the border.

[00:36:20] Speaker 03:
If I understand what you're saying, you're saying that the statute here provides all the due process that the petitioner is entitled to.

[00:36:31] Speaker 03:
But as several have mentioned, in Jones, the court recognized that.

[00:36:34] Speaker 03:
There may be a statute that provides more specific direction and just provides the umbrella of due process.

[00:36:43] Speaker 03:
So what I'd like to know, why is the government objecting to Jones applying but subject to the specific, from the government's perspective, due process requirements in the immigration law?

[00:37:02] Speaker 03:
In other words, why isn't Jones on a due process umbrella?

[00:37:05] Speaker 03:
You can answer the question.

[00:37:06] Speaker 03:
Due process does apply in the immigration context.

[00:37:09] Speaker 03:
In each individual circumstance, there may be a more specific way in which the government can comply with due process.

[00:37:19] Speaker 03:
And your argument, I believe, is that's true here and that you've met that requirement.

[00:37:23] Speaker 03:
Is that correct?

[00:37:24] Speaker 05:
Sure.

[00:37:25] Speaker 05:
So I would agree with you that Jones is an umbrella case on due process.

[00:37:30] Speaker 05:
And it gives a framework for how to determine whether notice is reasonably calculated.

[00:37:36] Speaker 03:
But why should we not accept that fact?

[00:37:39] Speaker 05:
I think you can accept that fact.

[00:37:41] Speaker 03:
Okay.

[00:37:41] Speaker 03:
So as a court, we can say Jones does apply as an umbrella concept subject to more specific requirements in an individual case.

[00:37:49] Speaker 05:
I think you can say that.

[00:37:51] Speaker 05:
I mean, I think, you know, our

[00:37:54] Speaker 05:
Our position is that the facts are so different here because the defendant received the order to show cause of the notice.

[00:38:00] Speaker 03:
I get that point.

[00:38:02] Speaker 03:
Several of my colleagues have pointed out why that's true.

[00:38:04] Speaker 05:
Right.

[00:38:05] Speaker 03:
So no matter what, the petitioner may lose whether Jones applies or not, but Jones provides an umbrella of saying, do process applies here.

[00:38:15] Speaker 03:
You're saying there is a subtext to this.

[00:38:17] Speaker 03:
That's what we ought to be looking at.

[00:38:19] Speaker 05:
Sure.

[00:38:23] Speaker 05:
If I may address a couple of points that were made earlier.

[00:38:26] Speaker 00:
Before you move on, I want to follow up on what Judge Smith is saying.

[00:38:28] Speaker 00:
Just make sure I understand the scope of your agreement with Jones.

[00:38:33] Speaker 00:
I read Jones as saying if notice has failed, then you need to look and see if there are other reasonable means of giving notice.

[00:38:41] Speaker 00:
So you're agreeing with that specific rule from Jones that it applies in immigration context?

[00:38:46] Speaker 05:
If notice of the initiation of proceedings fails.

[00:38:50] Speaker 00:
So we're back to the other question of like, so it's just the initiation of proceedings and not when you need to show up and have your hearing and actually have your opportunity to be heard.

[00:38:59] Speaker 05:
In the context of this case of deportation proceedings, yes, because we're looking at what the question is, what is reasonably calculated?

[00:39:06] Speaker 00:
And I mean, I think, I think that that's something new that I've just learned that I didn't learn from your briefs because you are saying to some degree Jones applies in immigration proceedings.

[00:39:15] Speaker 00:
And I think that wasn't clear from your briefs.

[00:39:18] Speaker 08:
Sure.

[00:39:18] Speaker 08:
I think.

[00:39:20] Speaker 08:
Right.

[00:39:21] Speaker 08:
But you're stopping short.

[00:39:22] Speaker 08:
You're saying they're not really entitled to their hearing notice.

[00:39:28] Speaker 05:
When what happens in this case happens, they are entitled to have the notice of the hearing notice mailed to the address of record after having receiving instructions to keep

[00:39:44] Speaker 05:
the court apprised of your address for the specific purpose of receiving the hearing notice.

[00:39:48] Speaker 04:
Is that because of Jones or because of something else?

[00:39:52] Speaker 05:
That's because of Jones and because of the statute.

[00:39:55] Speaker 10:
And there's no case, am I correct, that ever says that someone is actually entitled to actual notice.

[00:40:03] Speaker 10:
What they're entitled to is a process that is reasonably calculated to apprise them.

[00:40:08] Speaker 08:
Correct.

[00:40:10] Speaker 08:
And so if his address where he received

[00:40:14] Speaker 08:
Looks like everything where he showed up said 4037 North Cleveland Avenue.

[00:40:20] Speaker 08:
And the address in which was sent and said not deliverable did not have the avenue.

[00:40:26] Speaker 08:
Was that reasonably calculated to get to him?

[00:40:31] Speaker 05:
If the court, if I understand your question correctly, if the court mailed it to the wrong address, a different address than the one he provided, then no, that's not reasonably calculated.

[00:40:40] Speaker 05:
And that would be a basis to rescind the in absentia order, which getting back to the statutory scheme.

[00:40:45] Speaker 08:
But the address that was sent to him to show up for his hearing did not include the avenue.

[00:40:52] Speaker 05:
The address that was sent, or the notice that was sent, was sent to the address that he provided.

[00:40:58] Speaker 05:
And in the government's underlying briefing, we cite the DMM, the postal service record,

[00:41:05] Speaker 05:
If there was no address, it would have been returned stamped no such street or no such number.

[00:41:12] Speaker 08:
It said non-deliverable.

[00:41:14] Speaker 05:
Right.

[00:41:14] Speaker 05:
It said non-deliverable, unable to forward, which again, if you look in the DMM, means that the person has not provided a forwarding address.

[00:41:23] Speaker 08:
Well, but no.

[00:41:24] Speaker 08:
What happens if it never, if it's not deliverable to the Cleveland address unless it has the avenue attached to it?

[00:41:33] Speaker 05:
That's not what the facts show in this case, and that's not what the DNA sets.

[00:41:37] Speaker 08:
Well, there's clear inference that that might have happened here.

[00:41:40] Speaker 08:
And if the reasonable step of just looking and reviewing the A file would have revealed that, does that not comply with Jones?

[00:41:51] Speaker 05:
So again, this is going back to the statutory scheme.

[00:41:54] Speaker 05:
The court would have had to look at the A file when it entered its in absentia order of removal.

[00:42:01] Speaker 05:
because the statute requires a finding by clear and convincing evidence, clear and convincing and unequivocal evidence that the notice was mailed to the address of record.

[00:42:11] Speaker 06:
What's the relevance, if any, that the government had actual knowledge that its attempt to provide notice was not successful?

[00:42:21] Speaker 05:
Right.

[00:42:22] Speaker 05:
So what Jones does is

[00:42:27] Speaker 05:
ask the court to try a little bit harder at the outset to try and effectuate notice, right, to take some additional steps.

[00:42:35] Speaker 05:
What the immigration court knew at the time of the in absentia proceeding and when it knew that the hearing notice had been returned was that it had mailed the notice to the address that the defendant provided, that the defendant did not provide any other address, and that is undisputed,

[00:42:52] Speaker 05:
and that if there were some problem, some failure in the notice that was not the defendant's fault, he would have the opportunity to reopen, to rescind it, to unwind the whole process and start from the very beginning before the deprivation ever happens, before he is ever deported.

[00:43:08] Speaker 05:
So the immigration court had all of that knowledge.

[00:43:11] Speaker 06:
It sounds like what you're saying is that there's no difference if the government has actual knowledge that its attempt of service was unsuccessful.

[00:43:19] Speaker 06:
There's no... And I don't think that... I mean, I don't think that...

[00:43:22] Speaker 06:
squares with Jones because I think the issue is that the government has this additional information that its attempt at notice was unsuccessful.

[00:43:35] Speaker 06:
And you're sort of leaving out the fact that here also there was a returned envelope that very clearly provides notice to the government that

[00:43:46] Speaker 06:
it was unsuccessful in providing.

[00:43:48] Speaker 06:
That's correct.

[00:43:49] Speaker 05:
But I think the very clear and material and critical difference is that Jones was never told that he had to keep his address updated for the purpose of the tax sale proceedings.

[00:44:01] Speaker 06:
That sounds like a forfeiture argument that you're making, which I think you already, in response to a prior question that I asked, that you're not arguing that there's some sort of forfeiture of the right based on a failure to comply with the statutory requirement.

[00:44:16] Speaker 06:
It sounds, what you're saying now sounds very close to basically you're forfeiting your right because you didn't update your address.

[00:44:22] Speaker 05:
Well, what I'm saying really, what I mean to say is that Jones just didn't address this set of circumstances.

[00:44:28] Speaker 05:
It just didn't address it.

[00:44:30] Speaker 08:
It seems like it's very similar to what happened here in that Jones, the person didn't, the government received notice that it was not deliverable or didn't get to the person and the government

[00:44:46] Speaker 08:
should have then taken reasonable steps if practicable.

[00:44:50] Speaker 05:
Right, but Jones had never known that the attack sale had started and had never been told for purposes of the tax sale that he has to keep his address updated.

[00:45:00] Speaker 07:
Does it matter here that since the absentia hearing happened in 1994 and he was actually deported in 2006 and he didn't contest it at that time, does that fact matter?

[00:45:14] Speaker 05:
I think that fact goes to his lack of diligence.

[00:45:21] Speaker 05:
It would go to the question of whether he's entitled to reopen, right?

[00:45:25] Speaker 05:
So my friend here said he couldn't have moved to reopen.

[00:45:28] Speaker 05:
He couldn't have done anything about it because he only had four days.

[00:45:30] Speaker 05:
But the notice that he received, the order to show cause initiating proceedings against him, told him.

[00:45:35] Speaker 05:
It told him, if there's a problem, you can move to reopen.

[00:45:38] Speaker 05:
If you never got notice, you can move to reopen.

[00:45:41] Speaker 05:
So he knew what the remedy was all along.

[00:45:43] Speaker 05:
And this court held in Perez Portillo for purposes of a motion to reopen, the court cannot deny rescission of the in absentia order just by saying, hey, constructive notice was made.

[00:45:56] Speaker 05:
We mailed it to the address of record.

[00:45:57] Speaker 05:
The court has to consider all of the facts, all of the circumstances.

[00:46:01] Speaker 05:
So that lines up with Jones, right?

[00:46:02] Speaker 05:
You have to consider the unique information.

[00:46:05] Speaker 05:
So that would be something the court would consider if the defendant had raised his hand and said, hey, I never got notice.

[00:46:12] Speaker 05:
We need to unwind this.

[00:46:13] Speaker 05:
You can't deport me yet.

[00:46:15] Speaker 05:
The court would look to say, well, you were arrested in 2006.

[00:46:19] Speaker 05:
You didn't move to reopen.

[00:46:20] Speaker 05:
You were deported.

[00:46:21] Speaker 05:
You didn't move to reopen.

[00:46:22] Speaker 05:
You illegally reentered.

[00:46:23] Speaker 05:
You didn't move to reopen.

[00:46:25] Speaker 01:
Counsel, can I interrupt this with Judge Sanchez again?

[00:46:29] Speaker 01:
To go back to the similarities with Jones, there were potential remedies for Jones as well.

[00:46:35] Speaker 01:
He could have showed up at a tax sale and paid his delayed taxes.

[00:46:41] Speaker 01:
There were other things, but that's not what Jones focused on.

[00:46:46] Speaker 01:
To echo Judge Desai's point, Jones was focused on the fact that even when notice is reasonably calculated in normal circumstances under the statutory scheme,

[00:46:55] Speaker 01:
something else might need to be done when the government becomes aware that notice in a particular instance has failed.

[00:47:03] Speaker 01:
And so that government knowledge, you know, is a plus factor.

[00:47:07] Speaker 01:
And what I seem to hear you discuss is only Malay and not Jones.

[00:47:12] Speaker 01:
You know, the statutory scheme provides for notice reasonably calculated instead of therefore that's good enough.

[00:47:19] Speaker 01:
But I, but I, but I think you're sort of blending in some things that ignore parts of Jones that are applicable here now.

[00:47:25] Speaker 05:
So I think that Jones, when it did its interest balancing, because it said that's a key part of determining what is reasonably calculated, when it did its interest balancing, it said the balance of interest, given the facts in Jones and the tax sale at issue, required the government to take some front-end additional work, front-end additional steps.

[00:47:46] Speaker 05:
It wasn't too much to ask the government.

[00:47:50] Speaker 05:
That's different here, where you have a statute that

[00:47:53] Speaker 05:
For sure, the alien is going to know about the impending deprivation before it actually happens, because he's going to know he's about to be deported before it happens.

[00:48:01] Speaker 05:
And he has the opportunity to be heard.

[00:48:05] Speaker 05:
And so it's just kind of pushing to the back end that process without requiring the government to jump through extra hoops at the front end in a case

[00:48:14] Speaker 05:
where the incentives are different, where we have aliens who don't want to appear, right?

[00:48:19] Speaker 05:
Who are evading service, who are trying to thwart service.

[00:48:22] Speaker 01:
Not everyone.

[00:48:23] Speaker 01:
Is that a real protection if, let's play out your scenario, someone misses their hearing and is ordered removed in absentia, then they file a motion to reopen.

[00:48:38] Speaker 01:
Could that motion be denied simply on the basis that they failed to keep their address updated?

[00:48:44] Speaker 01:
Consisting with statutory requirements it can be denied if it is the defendant's fault For the failed notice as the Supreme Court said but then this goes back to the Jones issue where the exact same You know Jones was did not keep up with the legal obligation to keep his address updated for tax purposes either and the court said

[00:49:11] Speaker 01:
notwithstanding that, the government still owes a due process obligation to try to take additional reasonable steps if it's effective to do so.

[00:49:22] Speaker 01:
And what I'm hearing you say is this ephemeral non-remedy through a motion to reopen proceeding that would not satisfy the requirements of Jones.

[00:49:34] Speaker 05:
So again,

[00:49:38] Speaker 05:
What we have here is a defendant who was served the order to show cause and told what his obligations were.

[00:49:45] Speaker 05:
Jones does not dispense with the obligation of diligence once actual notice of the initiation of proceedings is made.

[00:49:52] Speaker 05:
That requirement is made very clear in Malain, and Jones does not dispense with that obligation.

[00:49:58] Speaker 03:
Counsel, let me ask you this.

[00:50:01] Speaker 03:
If we assume, arguendo,

[00:50:03] Speaker 03:
that the court believes that Jones does apply generally in the umbrella sense we talked about.

[00:50:09] Speaker 03:
There are lots of facts here.

[00:50:11] Speaker 03:
You've articulated from the government's perspective what you believe they are.

[00:50:15] Speaker 03:
Your opposing counsel has taken the opposite position.

[00:50:19] Speaker 03:
What should we do?

[00:50:20] Speaker 03:
We're a court of appeal.

[00:50:21] Speaker 03:
We're not a fact-finding court.

[00:50:23] Speaker 03:
The district court in this case didn't really look at some of the 1326 issues because it didn't think it needed to.

[00:50:31] Speaker 03:
Is the right remedy here?

[00:50:33] Speaker 03:
We say Jones apply, we send it back to the district court.

[00:50:35] Speaker 03:
You'd probably win because of the things that you've talked about.

[00:50:39] Speaker 03:
But is that something we should send to the district court?

[00:50:41] Speaker 03:
Or do you think we ought to be deciding it here based upon our perusal of the record?

[00:50:48] Speaker 05:
Sure.

[00:50:48] Speaker 05:
I do not think that remand for additional fact finding is appropriate for several reasons.

[00:50:53] Speaker 05:
And I'll try to squeeze them into my remaining two and a half minutes of time.

[00:50:58] Speaker 05:
First and foremost, this court can affirm on any ground, right?

[00:51:01] Speaker 05:
And the other three requirements of 1326D are either matters of law or matters that require no additional fact finding, whether the defendant exhausted his administrative remedies, whether the doors of judicial review were closed to him.

[00:51:15] Speaker 08:
Well, if he has a culpable claim that he did exhaust, I mean, do we decide that or do we send it back to the district court?

[00:51:22] Speaker 05:
Well, again, you can dispense with that because the other two are

[00:51:26] Speaker 05:
clear as a matter of law.

[00:51:29] Speaker 05:
So there's nothing really ultimately for him to win his claim, his motion to dismiss, that this court can't decide as a matter of law.

[00:51:39] Speaker 05:
Secondly, I do want to point out that the defendant did have a chance to address this in the district court at supplemental excerpt of record, page 22.

[00:51:49] Speaker 05:
The defendant had never raised Jones.

[00:51:54] Speaker 05:
But the court was thinking about these issues, and the court asked at oral argument, what else should the government have done?

[00:52:01] Speaker 05:
What could the court have done beyond mail it to the address that your client provided?

[00:52:05] Speaker 05:
And the defendant gave no specific answer.

[00:52:08] Speaker 05:
It was just, we believe it was fundamentally unfair.

[00:52:12] Speaker 05:
He didn't move to reopen, to try to reopen the record, to add evidence, right?

[00:52:16] Speaker 05:
So this was brought to his attention, and he gave no response.

[00:52:19] Speaker 10:
But I think... Was the defendant ever barred from introducing further evidence besides, say, his declaration?

[00:52:24] Speaker 05:
No.

[00:52:25] Speaker 05:
No.

[00:52:26] Speaker 05:
And then I think the most important issue here is... Well, did you argue on appeal that he forfeited?

[00:52:31] Speaker 05:
We raised the issue... We raised the point... Where in your brief did you argue that he forfeited?

[00:52:37] Speaker 05:
We did not argue that he forfeited.

[00:52:38] Speaker 05:
Okay.

[00:52:38] Speaker 05:
Thank you.

[00:52:39] Speaker 06:
We just raised that he hadn't raised Jones.

[00:52:41] Speaker 06:
And also, just... I think your friend on the other side argued that if there's a due process claim that's been raised, does the...

[00:52:48] Speaker 06:
plaintiff need to specifically argue Jones or invoke Jones?

[00:52:53] Speaker 05:
That's why we didn't hang our hat on the forfeiture issue.

[00:52:58] Speaker 05:
But if I may very quickly say what I think is the most important reason not to remand for fact-finding is we need to remind ourselves of what the defendant's actual claim was at the district court level.

[00:53:08] Speaker 05:
It was not

[00:53:09] Speaker 05:
that he tried to provide notice somewhere.

[00:53:11] Speaker 05:
It was not that even that he had moved.

[00:53:13] Speaker 05:
It was not that he was still receiving mail at that address and by some unknown reason it didn't get to him.

[00:53:19] Speaker 05:
It was because he claimed the address didn't exist.

[00:53:23] Speaker 05:
He provided no corroboration of this.

[00:53:25] Speaker 05:
He's claiming today now that you can look at Google in 2025, but there's no evidence that in 1994 it was a non-existing address and the government provided evidence

[00:53:35] Speaker 05:
that Portland changes its addresses from time to time.

[00:53:39] Speaker 05:
So if it was not an existing address, what else could the court have done?

[00:53:45] Speaker 05:
Nothing, because what that shows is that the defendant is trying to thwart service.

[00:53:50] Speaker 05:
He doesn't want to attend his deportation proceedings because he's providing an address that doesn't exist where he knows that the notice will not be received.

[00:53:58] Speaker 08:
Thank you very much.

[00:54:00] Speaker 05:
Thank you.

[00:54:08] Speaker 11:
The Jones Courts talked very clearly about what process is due and that certainly would include the time and place of a hearing.

[00:54:17] Speaker 11:
That is the most basic information and the Supreme Court has been looking at that in this Chavez where they're talking about what the sufficiency of a notice is, when it does not have it, that it should be in one document and that the key element of notice is time and place.

[00:54:34] Speaker 11:
That time and place is absent here.

[00:54:36] Speaker 11:
That is why the

[00:54:38] Speaker 11:
was a due process violation.

[00:54:40] Speaker 11:
There was no effort to do anything beyond, and the position in the district court from the government, we provided certified mail, it came back, end of story.

[00:54:51] Speaker 11:
Jones says no.

[00:54:53] Speaker 11:
It has to have some further reasonable steps, not unreasonable steps, but reasonable steps in addition to the service.

[00:55:02] Speaker 02:
Could you address on that point the

[00:55:06] Speaker 02:
The colloquy with the district court at Ser 22 that your friend on the other side mentioned if we were so it as I Understand that exchange you know the district court asked is there something else the government could have done and you didn't identify anything If we were to remand Do you can you sketch out is there additional evidence that you would provide by way of explanation of?

[00:55:29] Speaker 02:
What the government would do I would say look at the file that shows it was a

[00:55:33] Speaker 11:
that the address that was given and that may have been served before said Avenue, A-V-E, and the actual notice did not have that.

[00:55:43] Speaker 02:
The certified mail just said Cleveland, North Cleveland.

[00:55:46] Speaker 02:
But would you be seeking to introduce additional evidence on that point or is that something that could be, an argument that could be assessed based on the existing record?

[00:55:55] Speaker 11:
Well, at 166 we put into the record the problem with the address that the

[00:56:02] Speaker 11:
Once the government is saying that we need to do nothing further, I think that there are a number of things from Jones that are very obvious that they could do, which include sending a... My question was maybe more basic than that.

[00:56:20] Speaker 02:
Do you have some additional evidence you would like to present, if there were a remand?

[00:56:26] Speaker 11:
If there were a remand, I would be elaborating on the

[00:56:31] Speaker 11:
problems with the notice that was provided through the certified mail.

[00:56:36] Speaker 02:
I don't think that there's been... But would your elaboration consist of arguments based on the existing record or the introduction of some new evidence that's not in the current record?

[00:56:46] Speaker 11:
I don't know, but I would certainly be adding additional information based on the evidence that is in the record and would be evaluating whether there's anything further that should be brought to the court's attention.

[00:56:58] Speaker 08:
How about on the other, like exhaustion, the other 1326?

[00:57:01] Speaker 08:
Do you have colorable claims regarding those?

[00:57:05] Speaker 11:
Yes.

[00:57:05] Speaker 11:
They are briefed below.

[00:57:08] Speaker 11:
And when we were talking about why the court didn't reach any questions about prejudice or the exhaustion or judicial review, page 30 of the SER, the prosecutor did not ask for it.

[00:57:22] Speaker 11:
They said, do I need to do anything else?

[00:57:25] Speaker 11:
Nope.

[00:57:27] Speaker 11:
for this court to try to jump in and be the court of first review on any issues is contrary to the general rule that this is a court of review that you let the district court make its decisions both law legal and factual and based on those legal and factual decisions that's what the court makes take the position that your client did in fact

[00:57:50] Speaker 03:
put forth evidence to show satisfaction of 1326D, and then the district court just didn't address it.

[00:57:57] Speaker 03:
Is that correct?

[00:57:57] Speaker 11:
Yes.

[00:57:59] Speaker 11:
It did not resolve the arguments that were made in that.

[00:58:03] Speaker 11:
I do want to address the question that was raised about excludability as opposed to deportability, which was in effect before IRERA in 1996.

[00:58:13] Speaker 11:
And the rights are very different once the person is

[00:58:19] Speaker 11:
in the United States, has presence in the United States, that's where, under Plyler and a number of Supreme Court cases, the due process clause applies regardless of the person's legal status.

[00:58:32] Speaker 11:
And the case that my opponent referred to, Thurgassian, that was making the distinction based on the person not having established presence in the United States.

[00:58:44] Speaker 11:
There's no question here that there

[00:58:47] Speaker 11:
presence has been established by Mr. Rivera-Valdes.

[00:58:51] Speaker 11:
So he should have full coverage of the due process clause.

[00:58:56] Speaker 09:
Excuse me.

[00:58:58] Speaker 09:
I thought the Supreme Court said, for example, a parole situation where a person might be present, but under parole, it's a legal fiction that he is not present in there.

[00:59:10] Speaker 09:
He would not be entitled to due process.

[00:59:12] Speaker 09:
I'm not saying that applies here.

[00:59:14] Speaker 09:
But that's really a continuing rule of the Supreme Court.

[00:59:19] Speaker 11:
And I think the Supreme Court in Clark versus Martinez, when it was dealing with the Mario Cuban folks and their rights under the statutes, was recognizing that the rights do apply to the people who are present in the United States, even if they are in a parole status.

[00:59:47] Speaker 11:
On remand, I think that that is exactly what the court should do here.

[00:59:51] Speaker 11:
The court has a clean one-issue appeal here about whether the Jones versus Flowers provides the correct analytical framework for making a determination.

[01:00:06] Speaker 11:
There's not a question of whether the due process clause is satisfied by telling somebody that there is going to be something happening, but we're not telling you what it is yet.

[01:00:16] Speaker 11:
The due process applies to the time and place of the hearing.

[01:00:21] Speaker 11:
And once there is actual knowledge that that notice was ineffective, some further activity has to happen, some further additional reasonable steps.

[01:00:30] Speaker 11:
And those additional reasonable steps, I believe, are going to be established in this case on a remand that the court, that the government below simply did nothing despite not having used the same address as written in the

[01:00:46] Speaker 11:
previous documents provided and for what looks from a simple Google search in 2025 anyway as a simple error of a border street and that that was raised at page 166 of the extra records in the court below and the court should make the determination in the first instance about whether that violated the due process clause.

[01:01:12] Speaker 11:
In the absence of further questions,

[01:01:16] Speaker 08:
Thank you.

[01:01:17] Speaker 11:
Thank you.

[01:01:18] Speaker 08:
Mr. Sadie and Ms.

[01:01:20] Speaker 08:
Barr, thank you very much for your argument presentations here today.

[01:01:24] Speaker 08:
They're very greatly appreciated.

[01:01:26] Speaker 08:
The case of United States of America versus Leopoldo Rivera Valdez is now submitted and we are adjourned.

[01:01:33] Speaker 08:
Thank you.

[01:01:38] Speaker 08:
All rise.

[01:01:38] Speaker 08:
This court for this session stands adjourned.