to show that service by mail was reasonable under the circumstances of the particular situation in question. See Mullane, 339 U.S. at 314; Montgomery v. Scott, 802 F. Supp. 930, 932 (W.D.N.Y. 1992).
Considering the facts of this case, the Court concludes that providing notice to defendant by first-class mail met the requirements of due process. First, defendant concedes that the address to where the Government repeatedly sent notice is where he was residing. Because there is no evidence that any of the mailed notice was returned to the EOIR, it was reasonable for the Government to assume that the mail was reaching its intended destination. In his affirmation, defendant only asserts that he did not receive the notice as to his May 22, 1990 hearing, and the notice as to his right to appeal. While it is true that these notices were the only two which were causally related to his deportation, his failure to deny receipt of the prior two notices provides further evidence that the mailed notices were reaching defendant's residence. It is quite possible that, in other situations, first-class mail would be an unreasonable method of notice of a deportation hearing. However, the facts of this case simply do not support such a finding.
In light of Congress' decision to amend the INA by supplementing, but not replacing, the notice requirements of § 1252(b) with § 1252b, defendant makes the following argument: if § 1252(b) is the functional equivalent of the Mullane test, and if new § 1252b requires notice by certified mail at a minimum, then, by amending the INA with § 1252b, Congress must be conceding that the due process standard of reasonable notice, incorporated in § 1252(b), required notice beyond first-class mail all along.
The strength of this argument, however, is illusory. When evaluating the reasonability of notice, the consequences of a failure to appear must be considered. Cf. Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976) (due process analysis involves the balancing of the private interest affected by the official action, the risk of an erroneous deprivation of such interest through the procedures used, and the interest of the Government). Before the 1990 Act, if an alien failed to appear at his deportation hearing, the immigration judge had discretion to either deport the alien or reschedule the hearing for a later date. This case provides an example of an immigration judge exercising that discretion, as defendant's deportation hearing was rescheduled several times before the immigration judge ordered him deported. Only after the immigration judge found that defendant had failed to appear without explanation on any of the hearing dates, and that none of the notices had been returned to their sender, see Hendon Aff. Exs. T & U, did he conclude that defendant had received notice, and only then did he order deportation.
Assuming the amended notice requirements are met, the 1990 Act mandates that an immigration judge enter a deportation order at the first hearing in which the alien is absent.
Because the consequences to an alien of a failure to appear are more severe under the 1990 Act, it is not surprising that the notice requirements were strengthened. If first-class mail were all that was required by the INA under this mandatory in absentia deportation scheme, a due process argument based upon inadequate notice would be much more compelling. Because in this case the immigration judge checked to insure the notices were not being returned, because it is conceded that the notices were being sent to the proper address, see supra p. 3, and because the hearing was rescheduled several times for defendant's benefit, the Court does not find a due process violation based upon insufficient notice.
IV. Defendant's Motion to Sever
Defendant asserts that, according to Rule 8(a) of the Federal Rules of Criminal Procedure, counts two and three were improperly joined in the Superseding Indictment. See Prag Vianale Aff. PP 12, 13. Therefore, he moves the Court to sever these two counts from the illegal reentry count for trial. See id. The Government does not oppose this motion. See Government's Memorandum of Law in Opposition to Defendant's Pretrial Motions, 1 n.1. Because the Government does not object, the Court grants defendant's motion to sever for trial the illegal reentry count from the remaining two counts of the indictment.
For the reasons stated above, defendant's motion to dismiss the first count of his indictment is DENIED, and his motion to sever the second and third counts from the first is GRANTED.
New York, New York
October 10, 1995
Peter K. Leisure