Interim Decision #3142 

MATTER OF PEUGNET 

In Deportation Proceedings 

A-27538066 

Decided by Board January 29, 1991 

(1) The definition of the terms "routine service" and "personal service" provided by 8 

C.F.R. § 103.5a(a) (1990) only applies to administrative proceedings before Immigration and Naturalization Service officers and consequently is not directly or formally 

applicable to defining the terms "routine" and "personal" service as used in 8 C.F.R. 

§ 242.1(c) (1990) regarding the proper service on an alien of an Order to Show Cause, 

Notice of Hearing, and Warrant for Arrest of Alien (Form I-221 S) as a means of 

instituting deportation proceedings. 

(2) In interpreting the terms "routine" and "personal" service as used in 8 C.F.R. 

§ 242.1(c) (1990), the Board of Immigration Appeals will use the definition provided 

in 8 C.F.R. § 103.5a(a) (1990) as guidance and adopt that definition in total, given 

that 8 C F R § 101 ia(a) (1990) previously applied in defining "routine" versus 

"personal" service of an Order to Show Cause and there exists no currently applicable 

regulation defining these terms for purposes of 8 C.F.R. § 242.1(c) (1990). 

(3) For purposes of defining "routine" and "personal" service within the meaning of 8 

C.F.R. § 242.1(c) (1990), routine service consists of mailing a copy of a document by 

ordinary mail addressed to a person at his last known address, while personal service, 

which shall be performed by a government employee, consists of any of the following, 

without priority or preference: delivery of a copy personally; delivery of a copy at a 

person's dwelling house or usual place of abode by leaving it with some person of 

suitable age and discretion; delivery of a copy at the office of an attorney or other 

person, including a corporation, by leaving it with a person in charge; mailing a copy 

by certified or registered mail, return receipt requested, addressed to a person at his 

last known address_ 

(4) An alien's deportation hearing may not proceed in absentia where the Order to Show 

Cause is sent to the alien's address by regular mail and is not reserved by personal 

service as required by 8 C.F.R. § 242.1(c) (1990) after the alien fails to appear for the 

hearing or acknowledge that he has received the Order to Show Cause. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)1—Entered without inspection 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Adalsinda Lomangino, Esquire Lisa Furbee Ford 

780 N.W. 42nd Avenue, Suite 509 General Attorney 

Miami, Florida 33126 

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

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Interim Decision *3142 

In a decision dated January 21, 1988, an immigration judge found 

the respondent deportable as charged under section 241(a)(2) of the 

Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1988), as an 

alien who had entered the United States without inspection, denied 

her applications for relief from deportation, and ordered her deported 

from the United States to Nicaragua. The decision was rendered 

following a hearing held in absentia due to the respondent's failure to 

appear. The respondent has appealed from that decision. ,The appeal 

will be sustained and the record will be remanded to the immigration 

judge. 

The respondent, a native and citizen of Nicaragua, entered the 

United States without inspection on July 11, 1986. An Order to Show 

Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I221S) charging the respondent with deportability was issued on July 

12, 1986, and was personally served on the respondent that same day. 

After the respondent conceded her deportability and submitted an 

application for relief from deportation, an immigration judge, on May 

5, 1987, granted her motion for a change of venue from Harlingen, 

Texas, to Miami, Florida. Thereafter, the respondent failed to appear 

for a hearing scheduled for September 9, 1987, and the immigration 

judge administratively closed the case.' On October 15, 1987, the 

Immigration and Naturalization Service requested that the respondent's case be calendared for a continued hearing. That same day, the 

Service also issued a new Order to Show Cause, charging the 

respondent with the same ground of deportability and listing the exact 

same factual allegations listed in the prior Order to Show Cause. The 

new Order to Show Cause was sent to the respondent by regular mail. 

On October 19, 1987, the immigration judge granted the Service's 

motion and scheduled the respondent's next hearing for December 3, 

1987. The hearing was subsequently rescheduled, and the respondent 

was sent notice, by electronic mail to her last known address, of a 

hearing scheduled for January 14, 1988. As noted above, the respondent failed to appear for the scheduled hearing, which proceeded in 

absentia. 

On appeal, the respondent, through counsel, asserts that she never 

The immigration judge erred in administratively closing the case, as opposed to 

conducting the hearing in absentia, if the Immigration and Naturalization Service was 

willing to proceed with the case and establish the respondent's deportability. See Matter 

of Munoz-Santos, 20 I&N Dec. 205 (BIA 1990); Matter of Lopez-Barrios, 20 I&N Dec. 

203 (BIA 1990); Matter of Rosales, 19 I&N Dee. 655 (BIA 1988); Matter of Amico, 19 

l&N Dec. 652 (BIA 1988). However, it is not clear from the record whether the Service 

opposed administrative closure, and it did not file an interlocutory appeal of the 

immigration judge's action. 

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Interim Decision #3142 

received either the new Order to Show Cause or the notice of the 

January 14, 1988, hearing.2 

Section 242(b) of the Act, 8 U.S.C. § 1252(b) (1988), provides in 

pertinent part as follows: 

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 

A hearing in absentia is appropriate where the alien had notice of 

his hearing, had an opportunity to attend, and showed no reasonable 

cause for his failure to appear. Maldonado-Perez v. INS, 865 F.2d 328 

(D.C. Cir. 1989); Matter of Patel, 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); see also Matter of Haim, 19 I&N Dec. 641 (BIA 1988). 

Additionally, applications for benefits under the Act are properly 

denied as abandoned or for lack of prosecution when the alien fails to 

attend the hearing or otherwise pursue them. Reyes-Arias v. INS, 866 

F.2d 500 (D.C. Cir. 1989) (asylum); Matter of Balibundi, 19 I&N Dec. 

606 (BIA 1988) (asylum); Matter of Nafi, 19 I&N Dec. 430 (BIA 1987) 

(exclusion); Matter of Jaliawala, 14 I&N Dec. 664 (BIA 1974) 

(adjustment of status); Matter of Pearson, 13 I&N Dec. 152 (BIA 1969) 

(visa petition). 

Our review of the record shows that notice of the January 14, 1988, 

hearing was mailed to the respondent's correct address. However, the 

immigration judge erred in proceeding with an in absentia hearing on 

that date, as the Order to Show Cause had not been properly served on 

the respondent. 

The regulation at 8 C.F.R. § 242.1(c) (1990) provides: 

Service of the order to show cause may be accomplished either by personal service or 

by routine service; however, when routine service is used and the respondent does 

not appear for hearing or acknowledge in writing that he has received the order to 

show cause, it shall be reserved by personal service. 

As noted above, the October 15, 1987, Order to Show Cause was 

sent to the respondent by regular mail. Although 8 C.F.R. § 242.1(c) 

(1990) makes a distinction between "personal" and "routine" service, 

it does not provide any definition of those terms. To whatever extent 

they would be applicable to the manner in which an Order to Show 

Cause may be served, the Rules of Procedure for Immigration Judge 

Proceedings do not provide any definition or otherwise shed any light 

2The Service asserts on appeal that the respondent's appellate brief, styled as a motion 

for remand, should be disallowed, in that she had previously been given the opportunity 

to file a brief but stated on her Notice of Appeal to the Board of Immigration Appeals 

(Form I-290A) that no brief would be filed. In the circumstances of this case, the Board 

does not find good cause for disallowing the brief. 

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Interim Decision #3142 

as to how "routine service" is to be distinguished from "personal 

service." See 8 C.F.R. §§ 3.12-3.38 (1990). The procedural rules 

regarding service of documents in proceedings before immigration 

judges, set forth at 8 C.F.R. §§ 3.13 and 3.30 (1990), do define the 

term "service" but do not differentiate between "routine service" and 

"personal service." 

The terms "routine service" and "personal service" are defined in 

detail by the regulations at 8 C.F.R. § 103.5a(a) (1990). However, this 

regulation only applies by its own language to the "authorized means 

of service by the Service on parties and on attorneys and other 

interested persons of notices, decisions, and other papers ... in 

administrative proceedings before Service officers." As service of an 

Order to Show Cause on an alien as a means of instituting deportation 

proceedings cannot be viewed, even under a strained reading of the 

regulation, to constitute "administrative proceedings before Service 

officers," 8 C.F.R. § 103.5a(a) (1990) is not directly or formally 

applicable to the definition of the terms "routine" and "personal" 

service as used in 8 C.F.R. § 242.1(c) (1990). 

However, 8 C.F.R. § 103.5a(a) (1990) does remain relevant. In the 

absence of any formal regulatory definition of the terms "routine" and 

"personal" service as used in 8 C.F.R. § 242.1(c) (1990), it is the 

proper role and responsibility of this Board to interpret these terms so 

as to give effect to the regulatory intent and the policies and purposes 

of the immigration laws. See section 103 of the Act, 8 U.S.C. § 1103 

(1988); 8 C.F.R. § 3.1(d) (1990). In this regard, we point out that 8 

C.F.R. § 103.5a(a) did apply prior to 1983 in defining the manner in 

which an Order to Show Cause was to be served, because, at that time, 

deportation proceedings were conducted before and heard by Service 

officers, specifically "special inquiry officers." This regulation has not 

applied to the service of an Order to Show Cause since 1983, when 

deportation proceedings were no longer conducted before special 

inquiry officers within the Service, but instead were before immigration judges placed within the Executive Office for Immigration 

Review, which is separate and apart from the Service. See 8 C.F.R. 

Part 3 (1990); 52 Fed. Reg. 2931 (1987). 

Given that 8 C.F.R. § 103.5a(a) (1990) previously applied in 

defining "routine" versus "personal" service of an Order to Show 

Cause, and there exists no currently applicable regulation defining 

these terms for purposes of 8 C.F.R. § 242.1(c) (1990), the Board 

concludes that it is appropriate and in accordance with regulatory 

intent and the underlying policies and purposes of the immigration 

laws to use the definition provided in 8 C.F.R. § 103.5a(a) (1990) as 

guidance and to adopt that definition in total. 

Accordingly, for purposes of defining "routine" and "personal" 

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Interim Decision #3142 

service within the meaning of 8 C.F.R. § 242.1(c) (1990), routine 

service consists of mailing a copy of a document by ordinary mail 

addressed to a person at his last known address. Personal service, 

which shall be performed by a government employee, consists of any 

of the following, without priority or preference: 

(1) Delivery of a copy personally; 

(2) Delivery of a copy at a person's dwelling house or usual place of abode by leaving 

it with some person of suitable age and discretion; 

(3) Delivery of a copy at the office of an attorney or other person, including a 

corporation, by leaving it with a person in charge; 

(4) Mailing a copy by certified or registered mail, return receipt requested, addressed 

to a person at his last known address. 

Since the October 15, 1987, Order to Show Cause was sent by 

ordinary mail to the respondent's last known address, this constituted 

"routine" service under the interpretation of 8 C.F.R. § 242.1(c) 

(1990) now adopted by the Board. Because the respondent did not 

appear for the scheduled hearing and did not acknowledge in writing 

that she had received the Order to Show Cause, it had to be reserved 

by personal service in accordance with this regulation. A hearing could 

be held only after the Order to Show Cause had been personally served 

on the respondent and notice of a new hearing had been provided to 

her. 

The Board acknowledges that the Order to Show Cause issued on 

July 12, 1986, had been personally served on the respondent. 

However, this document was of no effect, as it had been superseded by 

the Order to Show Cause issued on October 15, 1987, as the Service 

has acknowledged on appeal. It is not clear why the new Order to Show 

Cause was issued, but the respondent has speculated that the 

superseding order may have been issued because it is unclear from a 

reading of the document whether the prior order was signed and issued 

by an authorized officer of the Service. See 8 C.F.R. § 242.1(a) (1987). 

As the October 15, 1987, Order to Show Cause was not properly 

served on the respondent, deportation proceedings would ordinarily be 

ordered terminated. In this case, however, it is clear from the 

respondent's appellate brief that counsel now has possession of the 

document. Since service on counsel constitutes service on the respondent, the Order to Show Cause need not be reserved on the 

respondent. See 8 C.F.R. § 292.5(a) (1990). Accordingly, the record 

will be remanded to the immigration judge for de novo deportation 

proceedings. 

ORDER: The January 21, 1988, decision of the immigration 

judge is vacated, and the record is remanded to the immigration judge 

for further proceedings consistent with the foregoing opinion, and for 

the entry of a new decision. 

237