Interim Decision #3136 

MATTER OF MUNOZ-SANTOS 

In Deportation Proceedings 

A-28724030 

Decided by Board June 14, 1990 

(1) Where the Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien 

(Form 1-22 IS) reflects that the respondent signed various portions of the form, that 

various rights forms and advisories had been served on the respondent, and that an 

officer of the Immigration and Naturalization Service signed the portion of the 

document certifying service, it may be assumed that the Order to Show Cause was 

served personally on the respondent, in compliance with 8 C.F.R. § 242.1(c) (1990). 

(2) Personal service of a notice of a hearing date is not reauired for the immigration 

judge to conduct a deportation hearing in absentia where the respondent fails to 

appear for a scheduled hearing. 

(3) Where the immigration judge concludes that notice of a hearing date has been 

sufficiently provided to a respondent, and the respondent without reasonable cause 

fails to appear, the immigration judge may conduct an in absentia deportation 

hearing. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)]—Entered without inspection 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Pro se John B. Barkley 

Patricia M. Vroom 

General Attorneys 

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

In a decision dated June 28, 1989, an immigration judge administratively closed the respondent's case when the respondent failed to 

appear for a scheduled hearing. The Immigration and Naturalization 

Service appealed. The appeal will be sustained and the record will be 

remanded to the immigration judge for further action. 

We shall consider this interlocutory appeal pursuant to our decision 

in Matter of Amico, 19 I&N Dec. 652 (BIA 1988). In administratively 

closing this case, the immigration judge stated that there was no 

evidence to establish that the respondent had been properly served 

with the Order to Show Cause, Notice of Hearing, and Warrant for 

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Arrest of Alien (Form I-221S). The immigration judge also stated that 

there had not been compliance with the regulations regarding service 

of the notice of hearing date. Failure to follow the required procedures, 

the immigration judge found, denied the respondent due process and 

was prejudicial. He therefore administratively closed the proceedings, 

rather than holding a hearing in absentia, as requested by the Service. 

The Service argues in its appeal that the immigration judge should 

not have administratively closed the case but rather should have held 

an in absentia hearing, pursuant to section 242(b) of the Immigration 

and Nationality Act, 8 U.S.C. § 1252(b) (1988). See Maldonado-Perez 

v. INS, 865 F.2d 328 (D.C. Cir. 1989); Ibrahim v. United States INS, 

821 F.2d 1547 (1 1 th Cir. 1987); Matter ofPatel, 19 I&N Dec. 260 (BIA 

1985), aff'd, 803 F.2d 804 (5th Cir. 1986); Matter of Marallag, 13 I&N 

Dec. 775 (BIA 1971). 

We shall first consider whether service of the Order to Show Cause 

and of the notice of the hearing date was adequate in this case. We find 

that there is sufficient proof of proper service of the Order to Show 

Cause. The Form I-221S in this case reflects that on April 20, 1989, the 

respondent signed the portion of the form entitled "Notice of Custody 

Determination." He also signed the portion of the document requesting a prompt hearing. On the same date, an immigration officer signed 

that part of the document which certifies service of the Order to Show 

Cause There is a stamp on the form stating that the "above 

advisement" had been read to the respondent in Spanish., and that the 

Forin 1-618 written notice of appeal rights had been served, as had the 

Legal Services Notice. Finally, there is a finger or thumb print on the 

Form I-221S to identify the respondent. Despite the contrary finding 

of the immigration judge, we can only assume from these facts that the 

Order to Show Cause was personally served on the respondent, in 

compliance with 8 C.F.R. § 242.1(c) (1990). We note that there is no 

place on the part of the form relating to the certificate of service for the 

respondent to sign; there is only a place for the immigration officer to 

sign. 

We also find that service of the notice of the June 28, 1989, hearing 

date was sufficient. The record of proceedings indicates that at the 

bond redetermination hearing, the respondent provided information 

indicating that he would be residing with an Anna M. Castro at 1106 

Van Buren Street, Uniondale, New York 11553. On May 16, 1989, the 

Office of the Immigration Judge utilized this address to inform the 

respondent of the time, date, and place of the hearing to be held before 

the immigration judge. There is no indication that this notice was 

returned to the Office of the Immigration Judge as undeliverable. We 

see no reason why the immigration judge should not have relied upon 

this notice as a sufficient notice of hearing. In his decision he states 

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that there was no compliance with the requirements of 8 C.F.R. 

§ 103.5a(c)(1) (1990) regarding personal service. According to that 

regulation, "In any proceeding which is initiated by the Service, with 

proposed adverse effect, service of the initiating notice and of notice of 

any decision by a Service officer shall be accomplished by personal 

service ... " rather than routine service by mail. 

The May 16, 1989, notice of hearing in this case was sent by the 

immigration judge's office, not by the Service, and it was not an 

initiating notice or a notice of a Sex -vice officer's decision. Arguably, 8 

§ 103.5a(c)(1) (1990) would not apply for these reasons. 

Moreover, there is a more recently promulgated regulation which 

clearly does cover the issue of what service is required in providing 

notice of a hearing. That regulation, 8 C.F.R. § 3.17 (1990), simply 

states, "The Office of the Immigration Judge shall be responsible for 

providing notice of the time, place, and date of the hearing to the 

government and respondent/applicant." No particular form of service 

is required by the regulation. We find that this regulation is controlling, because it clearly covers the issue presented, which 8 C.F.R. 

§ 103.5a(c)(1) (1990) arguably does not, and because, assuming a 

conflict between the two regulations, it would govern since it was 

promulgated at the later date.' See Saludes v. Ramos, 744 F.2d 992, 

994 (3d Cir. 1984): see also Inter-Continental Promotions, Inc. v. 

MacDonald, 367 F.2d 293 (5th Cir. 1966). 2 See generally Matter of 

Dobere, 20 I&N Dec. 188 (BIA 1990). Most notices of hearing dates 

are, in fact, served by routine service, not personal service. In the 

present case, notice was sent to the last address provided by the 

respondent, and the notice provided was adequate. 

We also note that the administrative closing of this case, in the face 

of the Service opposition to such action, was not appropriate in any 

event. As we stated in Matter of Amico, supra, administrative closing is 

merely an administrative convenience. It allows the removal of cases 

from the immigration judge's calendar in certain situations. However, 

it does not result in a final order of deportation. Thus, if it is used 

when a respondent fails to appear for a hearing, the respondent is able 

to avoid an order regarding his deportability. Id. We therefore hold 

that the administrative closing procedure should not be used if it is 

opposed by either party to the proceedings. 

I The regulation at 8 C.F.R. § 3.17 became effective on March 2, 1987, as part of the 

Rules of Procedure for Proceedings before Immigration Judges, whereas 8 C.F.R. 

§ 103.5a(c)(1) was promulgated in 1972 and amended in 1974. 

2The cases cited relate to rules of statutory construction. The rules of construction 

which apply to statutca apply to construing regulations as well. See ..ficarilla Apache Tribe 

V. Andrus, 687 F.2d 1324 (10th Cir. 1982); Rucker v. Wabash R.R. Co., 418 F.2d 146 

(7th Cir. 1969). 

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When a respondent fails to appear for a scheduled hearing, the 

Service should be allowed to allege, on the record, that proper notice of 

the hearing was given to the respondent. If it is alleged that notice was 

sent to the last known address of an unrepresented respondent, the 

Service should provide to the court information regarding that 

address, and the basis for its belief that it is the last known address. If 

the immigration judge is satisfied that the notice provided to the 

respondent was in fact sufficient, then a hearing in absentia, in 

accordance with section 242(b) of the Act, may be held. 

For the reasons set forth above, we shall sustain the Service appeal 

and remand the record to the immigration judge. 

ORDER: The appeal is sustained and the record is remanded 

to the immigration judge for further action in accordance with the 

foregoing decision. 

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