July 09, 2018

The burden of serving a proper "notice to appear" at an administrative hearing is the responsibility of the charging party

The burden of serving a proper "notice to appear" at an administrative hearing is the responsibility of the charging party
Pereira v Sessions, USSC, Docket 17-459

The Illegal Immigration Reform and Immigrant Responsibility Act provides that a nonpermanent resident who is subject to removal may be eligible for cancellation of removal if he or she has “been physically present" in the U.S. for a continuous period of not less than 10 years.* Continuous presence is viewed as interrupted when the alien is served a w written notice to appear and specifying the “time and place" of proceedings. In the Pereira decision the Supreme Court commented that the Department of Homeland Security often serves notices that fail to specify the time, place, or date of initial removal hearings.

Pereira was served with a “notice to appear” that ordered him to appear at a date to be set in the future. Ultimately a notice was mailed to Pereira setting the date and time for his hearing but it incorrectly addressed and Pereira was able to show that he had never received the notice and contended that this meant that he had been continuously present for more than 10 years as the so-called "stop-time" rule had not been triggered, which would have been the case had proper service been effected advising him of the date, time and place of his "deportation hearing."

The Supreme Court, reversing a Circuit Court of Appeals ruling, explained that "A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a “notice to appear” under section 1229(a) and does not trigger the stop-time rule."

Accordingly Pereira was able to successfully claim that he had been "physically present" in the United States for more than ten years.

The same theory is applied in New York State cases involving "proper service" of a notice of discipline in DiPillo v Jacknis.**

DiPillo was dismissed from his position with Westchester County after being found guilty of the charges filed against him by the hearing officer. The disciplinary hearing, however, was conducted in absentia. Claiming that he had not received any written notice of the charges preferred against him as required by Civil Service Law §75, the employee sued seeking to [1] have the disciplinary determination vacated and [2] reinstatement to his position with salary and benefits retroactive to the date of his termination.

According to the decision, the notice of disciplinary action was sent to DiPillo by Certified Mail but that the envelope was returned as "unclaimed" by the United States Postal Service. The envelope also indicated that the letter was mailed to a Briarcliff Manor, NY 10501 but that the address used by the appointing authority was "incomplete." Also troublesome to the court was the fact that the employee "could have been served personally at his place of employment after the notice came back unclaimed.” At the very least, said the court, the appointing authority" could have inquired as to the employee’s address to ensure that the notice was properly sent.”

Supreme Court found that under the circumstances the employee had not been served with the written notice of disciplinary charges mandated by Section 75 of the Civil Service Law and granted the employee’s petition, citing Bellatoni cited DelBello v. New York City Transit Authority, 151 AD2d 479, in support of its ruling.

In DelBello the Appellate Division affirmed a Supreme Court decision annulling and vacating a determination terminating DelBello’s employment. In that case, hearing notices were sent to an address from which DelBello had moved and all notices were returned to the Authority unopened and marked "moved-left no address" and that the Authority failed to take any other steps to notify the DelBello of the pending charges.

In the words of the Appellate Division “Clearly mailing the notice to the petitioner's last known address was not notice reasonably calculated, under all the circumstances, to apprise DelBello’s of the pendency of the [disciplinary proceedings] and afford [him] an opportunity to represent [his] objections.” In contrast, noted the Appellate Division, the Authority regarded the failure of [DelBello] to receive notice of the hearing and charges as [DelBello’s] problem”.

Supreme Court remanded the matter to the appointing authority, "to be heard before a different Hearing Officer."

In contrast, an employee’s claim that she did not receive notice of disciplinary charges mailed to her was rebutted by employer’s evidence of proper mailings. In a case involving the Board of Educ. of City School District of City of New York,*** the court noted that the New York City Board of Education [BOE] sent a “notice of charges” to a tenured teacher by certified mail, return receipt requested and by regular mail.

Although the certified mail copy of the Charges was returned to BOE as “unclaimed,” the regular mail copy of the Charges was never returned. BOE subsequently again sent a written statement detailing the Charges against the teacher in accordance with Education Law §3020-a by certified mail, return receipt requested, and by regular mail.  Again the certified mail copy of the Charges was returned to BOE as “unclaimed,” but the regular mail copy of the Charges was never returned. A third mailing was sent via certified mail, return receipt requested, and by regular mail. This time neither copy was returned to DOE.

Ultimately a Disciplinary Panel held a hearing in absentia
**** and the teacher was found guilty of the charges filed against her and terminated. When BOE refused to reinstate her the teacher filed a petition seeking a court order directing BOE to reemploy her and award her back salary and benefits contending that she never received the regular mailings of the Notice of Charges and the written statement detailing the Charges “because mail often gets lost in her large apartment complex.”

Supreme Court said that “in an Article 78 proceeding, the court’s role is to determine whether the challenged administrative action had a rational basis or whether it was an arbitrary and capricious action [and] the administrative action must be upheld unless it ‘shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a law.” In this instance the court found that BOE “properly mailed multiple copies of the Notice of Charges and the actual Charges." Only the certified mail copies were returned, and they were returned as unclaimed, indicating that the teacher failed to pick them up from the post office, not that they were improperly sent.

Given BOE’s proof of mailings, the court was not persuaded by the teacher’s statement that she did not receive the Notice of Charges or the Charges. In the words of the court, the teacher’s “bald assertion of non-receipt is insufficient to overcome the presumption that properly sent mail is received.” Accordingly, Supreme Court held that it was not arbitrary or capricious for BOE "to proceed with the inquest after properly mailing multiple letters informing the teacher of the situation" and dismissed her petition.

* 8 U.S.C. 1229(b)(1)(A).

** Not published in the Official Reports. However, the decision is posted on the Internet at:

*** 2008 NY Slip Op 31935(U), Supreme Court, New York County, [Not selected for publication in the Official Reports]. The decision is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2008/2008_31935.pdf

**** The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed but must actually hold a “hearing in absentia” and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee’s failure to appear at the hearing as scheduled is, in effect, a concession of guilt.


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that neither the publisher nor members of the staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.