                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                        January 8, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
HUBER ERASMO CIFUENTES,

             Petitioner,

v.                                                          No. 12-9542
                                                        (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before KELLY, McKAY, and O’BRIEN, Circuit Judges.


      The immigration judge (IJ) determined that Huber Erasmo Cifuentes had

abandoned his application for relief under section 203 of the Nicaragua Adjustment

and Central American Refugee Act (NACARA) because, contrary to a directive in

the notice setting his hearing, Mr. Cifuentes did not have his NACARA application


*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
ready for filing at the hearing. The Board of Immigration Appeals (BIA) dismissed

Mr. Cifuentes’ appeal, holding that he had notice of the filing deadline and that the IJ

properly deemed his application abandoned when he failed to timely file it. See

8 C.F.R. § 1003.31(c). Before this court, Mr. Cifuentes renews his argument that he

was denied procedural due process because he did not have adequate notice to

present his NACARA application at the hearing. Our review of this constitutional

question is de novo. See Alzainati v. Holder, 568 F.3d 844, 851 (10th Cir. 2009).

      “An alien in removal proceedings is entitled only to the Fifth Amendment

guarantee of fundamental fairness. Therefore, when facing removal, aliens are

entitled only to procedural due process, which provides the opportunity to be heard at

a meaningful time and in a meaningful matter.” Schroeck v. Gonzales, 429 F.3d 947,

952 (10th Cir. 2005) (internal quotation marks and citation omitted). “This right to

be heard has little reality or worth unless one is informed that the matter is pending

and can choose for himself whether to appear or default, acquiesce or contest.”

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

Accordingly, “[a]n elementary and fundamental requirement of due process . . . is

notice reasonably calculated, under all the circumstances, to apprise interested parties

of the pendency of the action and afford them an opportunity to present their

objections.” Id.

      The administrative record contains a Notice of Hearing in Removal

Proceedings dated June 4, 2009, scheduling Mr. Cifuentes’ hearing for July 7, 2009.


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On the notice’s last line listing “Attachments,” the box for “Other” is checked, and a

hand-drawn arrow points to a stamp in the right side of the bottom margin of the

page. This stamp states:

      Any and all Applications are due on this hearing date – to be filed in
      person at the Oklahoma City Court. Applications and other filings must
      follow the EOIR Practice Manual Guidelines to be accepted. Any
      Applications not filed on this date may be deemed abandoned by the
      Judge.

Admin. R. at 306. Mr. Cifuentes asserts that this stamp did not constitute adequate

notice that he was to appear at the hearing with his NACARA application in hand.

His attorney actually received the June 4, 2009, hearing notice, but apparently either

did not see it or did not understand that it required Mr. Cifuentes to have the

NACARA application ready for filing at the hearing.

      The stamp is in slightly smaller text than the remainder of the notice, but it is

not hidden or unreadable. In plain language, and a month in advance, it establishes a

deadline for filing applications and advises of the potential consequences for failing

to meet the deadline. If counsel had any questions or concerns about the advisement,

such as the source of authority for issuing it or how it might be relevant to

Mr. Cifuentes’ case, he could have contacted the immigration court for more

information. Although we recognize that the result may be harsh, in “our system of

representative litigation,” Mr. Cifuentes “is deemed bound by the acts of his

lawyer-agent.” Link v. Wabash R.R. Co., 370 U.S. 626, 634 (1962). Counsel’s




                                          -3-
failure to understand the import of the stamp does not mean that the notice was so

inadequate as to work a denial of due process.

      The petition for review is denied.


                                                 Entered for the Court


                                                 Monroe G. McKay
                                                 Circuit Judge




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