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Keywords

hearingdue processasylumobjectionliens
hearingdue processasylumobjectionliens

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Khan v. Ashcroft

Facts

Petitioner Jamal Khan illegally entered the United States on May 10, 1998, and filed an application for asylum in December of that year, claiming political persecution in Afghanistan. The asylum officer denied his application and provided him with written notice in English to appear before an immigration judge (IJ) for a master calendar hearing. At the hearing, Khan requested a continuance to obtain counsel, which was granted, and he was personally served with a second notice of the new hearing date, also in English. Khan failed to appear at the second hearing, resulting in an order of removal issued in absentia.

Petitioner Jamal Khan illegally entered the United States on May 10, 1998. In December of that year, he filed an application for asylum, listing Afghanistan as his country of origin. In the declaration accompanying his asylum application, Khan stated that he was involved in political organizing activity, for which he claimed to have been imprisoned and threatened. The asylum officer denied his application, and gave him writ-ten notice (the 'first notice'), in English, to appear before an IJ for a hearing on July 27, 1999. At the hearing on July 27, which was a 'master calendar hearing,' Khan requested a continuance so that he could be represented by counsel. Although it is unclear from the record whether Khan was accompanied by an English-speaker or requested the continuance himself, we do know that he appeared and that the master calendar hearing was conducted in English. At the conclusion of the master calendar hearing, Khan was person-ally served with written notice (the 'second notice') of the new hearing date. Again, the notice was in English. Khan failed to appear at the second hearing, and an order of removal was issued.

Issue

Did the failure to provide notice of the second hearing in a language the alien understands violate his due process rights?

Did the failure to provide notice of the second hearing in a language the alien understands violate his due process rights?

Rule

The Due Process Clause requires that notice be sufficient to advise aliens of the pendency of the action and afford them an opportunity to present their objections. Actual notice is sufficient to meet due process requirements.

The Due Process Clause requires that notice be sufficient to advise aliens of the pendency of the action and afford them an opportunity to present their objections. Actual notice is sufficient to meet due process requirements.

Analysis

The court found that Khan had actual notice of the master calendar hearing and was personally served with notice of the second hearing. The INS had adhered to the procedural requirements of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), and since Khan attended the first hearing, the court concluded that the notice of the second hearing was sufficient. The court also noted that Khan's request for a continuance indicated he was able to communicate in English or was accompanied by someone who understood English.

The court found that Khan had actual notice of the master calendar hearing and was personally served with notice of the second hearing. The INS had adhered to the procedural requirements of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), and since Khan attended the first hearing, the court concluded that the notice of the second hearing was sufficient. The court also noted that Khan's request for a continuance indicated he was able to communicate in English or was accompanied by someone who understood English.

Conclusion

The court denied Khan's petition for review, holding that his due process rights were not violated by the failure to provide notice in his native language, as he had actual notice and was personally served.

The court denied Khan's petition for review, holding that his due process rights were not violated by the failure to provide notice in his native language, as he had actual notice and was personally served.

Who won?

The government prevailed in the case because the court found that the INS provided adequate notice and followed proper procedures, thus upholding the BIA's decision.

The government prevailed in the case because the court found that the INS provided adequate notice and followed proper procedures, thus upholding the BIA's decision.

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