Saturday, August 04, 2007

Diaz (not precedential): Can't Reopen A Pre-1997 Case for Lack of Notice If Got Notice of the Hearing

In Diaz v. Gonzales, No. 05-5071 (3d Cir. July 30, 2007) (not precedential), the Third Circuit ruled that someone could not reopen her case using the argument that she did not receive notice in a pre-1997 case if she did get actual notice of the hearing date that she missed.

Before 1997, deportation cases started with an Order to Show Cause followed later by a notice of the hearing date. This case looks at what happens when it's not clear that the government properly sent the Order to Show Cause but can show that the immigrant got the notice of the hearing date.

The Third Circuit concluded the government satisfied the requirements because it could show by clear, unequivocal, and convincing evidence that the immigrant got the notice of hearing, even though it's not clear whether she ever got the Order to Show Cause.

The Third Circuit did not address, though, whether even if the government satisfied the pre-1997 statute, would that be proper due process. For example, is it really fair to expect everyone who receives a notice of hearing to understand that they have to show up, especially if they never got the first document that explains what the accusations are against them? It might be helpful to look into other areas of the law -- what if you never get a parking ticket and then suddenly get a cryptic note to show up in traffic court? It might depend on how clearly worded the notice of the hearing is. And my nagging suspicion is that courts and agency administrators probably do not write hearing notices in plain English. Seems that this issue is one for somebody to raise in a later case, beacuse it might not have been raised in this case.