Unpublished Disposition, 865 F.2d 263 (9th Cir. 1985)

MEMORANDUM^** 

Deportation proceedings were initiated in 1983 against petitioner Mario Donado-Navarrate ("Donado"). A deportation hearing was held on August 31, 1983, at which Donado admitted deportability, but requested a suspension of the hearing so that he could apply for asylum or, in the alternative, voluntary departure. Deportation proceedings were suspended for nearly two years while Donado pursued his asylum petition. On June 12, 1985, notice of a new deportation hearing date was mailed to and received at the office of Raul Pardo, Donado's counsel of record from the 1983 hearing. On the day of the hearing, however, neither Donado nor his attorney appeared. Consequently, the Immigration Judge conducted the hearing in absentia and ordered Donado deported. Donado seeks review of the order of deportability.

Donado raises three challenges to the deportation order: First, that he was denied due process when the government served notice of the continuance of the deportation hearing on his counsel, but failed to attempt personal service on Donado himself; second, that the Immigration Judge violated Sec. 1252(b) of the Immigration and Naturalization Act by conducting the hearing in absentia without giving Donado a reasonable opportunity to appear; and third, that the in absentia procedure violated his due process rights. We address each of these arguments in turn.

First, it is undisputed that a deportation proceeding must meet essential standards of fairness embodied in the due process clause. United States v. Barraza-Leon, 575 F.2d 218, 220 (9th Cir. 1978); see also Bridges v. Wixon, 326 U.S. 135, 154 (1945). The Immigration and Naturalization Act requires that "the 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." 8 U.S.C. § 1252(b) (1). This provision in the Act comports with due process requirements for adequate notice. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950) (due process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity" to be heard).

In most circumstances, service of notice on a party's counsel will satisfy due process. In "our system of representative litigation ... each party is deemed bound by the acts of his lawyer-agent and is considered to have 'notice of all facts, notice of which can be charged upon the attorney.' " Link v. Wabash Railroad Co., 370 U.S. 626, 634 (1962) (quoting Smith v. Ayer, 101 U.S. 320, 326 (1880); see also NLRB v. Sequoia Dist. Council of Carpenters, 568 F.2d 628, 633 (9th Cir. 1977) (service of judgment on union's attorney gave union sufficient notice to bind it to the terms of the judgment). Even " [a] criminal defendant represented by counsel at trial receives constitutionally adequate notice when his trial counsel receives actual notice of the government's appeal." United States v. Everett, 700 F.2d 900, 902, n. 5 (3d Cir. 1983).

We are persuaded that under the circumstances of the present case notice to counsel constitutes reasonable notice to Donado. Notice was mailed to and received at the offices of Donado's attorney of record from the initial phase of deportation proceedings against Donado. In his brief on appeal, Donado concedes that the lawyer was still acting as his counsel at the time that the notice was received. Donado apparently does not argue that constructive notice never satisfies the Act or due process. Rather, he contends that because of the two-year lapse between initiation of deportation proceedings and the continuance hearing, the INS was required to serve notice of the new hearing date on Donado personally. We see no reason why the two-year interval should render constructive notice unfair. Since Pardo continued to serve as Donado's counsel during the entire period, it was reasonable for the INS to rely on Pardo to notify Donado of the new hearing date. Thus, we find no merit in Donado's contention that he was denied reasonable notice of the resumption of deportation proceedings.

Second, we consider Donado's claim that the Immigration Judge violated Section 1252(b) of the Immigration and Naturalization Act by conducting the hearing in absentia. Section 1252(b) provides:

If any alien has been given a reasonable opportunity to be present at a proceeding under this section, and without reasonable cause fails or refuses to attend or remain in attendance at such proceeding, the special inquiry officer may proceed to a determination in like manner as if the alien were present.

Donado argues that he was not given a reasonable opportunity to be present since he never received notice of the hearing. Similarly, because he had no knowledge of the continuance, he had reasonable cause for failing to appear. Donado concludes that the Immigration Judge should not have proceeded with the hearing under the circumstances and his decision to do so constitutes an abuse of discretion.

We disagree. As explained above, Donado was given a reasonable opportunity to appear: his counsel received written notice of the hearing, and such notice can be charged to Donado. Donado might still be entitled to relief from the in absentia determination of deportability, however, if he could show that there was a valid reason for his failure to appear, but Donado makes no such showing. Donado's sole explanation is that his attorney did not inform him of the pending hearing. His attorney's error will not excuse Donado for his failure to attend the hearing. Courts have held that a client who has chosen an attorney as his representative may not avoid the consequences of that attorney's actions or omissions. See, e.g., Link, 370 U.S. at 635 (holding that counsel's failure to attend pretrial conference may justify dismissal of action); Everett, 700 F.2d at 902 n. 5 (ruling that court may decide case even if counsel, after receiving proper notice of appeal, fails to file a brief).

Finally, we consider Donado's argument that his due process rights were violated when the deportation hearing was conducted in absentia. An alien must have a reasonable opportunity to be present at his deportation hearing, but if "the [alien] fails to avail himself of that opportunity the hearing may proceed in his absence." INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984); see also United States v. Dekermenjian, 508 F.2d 812, 814 (9th Cir. 1974); Patel v. United States INS, 803 F.2d 804, 806 (5th Cir. 1986); Shaw v. INS, 788 F.2d 970, 972 (4th Cir. 1986). Donado had a reasonable opportunity to be present at his deportation hearing; due process requires no more than that.

Donado's reliance on a series of right to counsel cases is misplaced. In all of the cases cited, the alien appeared pro se at his deportation hearing and requested a continuance to secure counsel. Under those circumstances, courts have held that it violates due process to deny the alien a continuance. See Rios-Berrios v. INS, 776 F.2d 859, 862-63 (9th Cir. 1985); Castro-Nuno v. INS, 577 F.2d 577, 578 (9th Cir. 1978); Castaneda-Delgado v. INS, 525 F.2d 1295, 1300 (7th Cir. 1975). Those cases are clearly distinguishable, since Donado never requested a continuance. We do not read them to impose on the Immigration Court the responsibility to continue a hearing every time a party does not appear or to guarantee an alien the right to have counsel present at a deportation proceeding even if the alien's chosen counsel fails or refuses to appear.

For the foregoing reasons, the petition for review of the decision of the Board of Immigration Appeals is

DENIED.