Undeliverable Hearing Notice: BIA Rules in Chamorro Castillo

An undeliverable hearing notice no longer obliges an immigration court to try anything else, the Board of Immigration Appeals ruled on Oct. 22. In Matter of Chamorro Castillo, 30 I&N Dec. 170 (BIA 2026), the Board held that when a notice mailed to the only address in the record comes back undeliverable, there are no further reasonable steps a court or the Board can take, so an in absentia removal order based on that mailing can stand.

The precedent is the Board’s answer to a due process test the Ninth Circuit has been building over the past year, and it binds immigration judges nationwide. It matters most for people released from immigration detention, whose address often reaches the court only through a form DHS files, and who are now losing cases in absentia at a faster pace than ever recorded.

A full mailbox and a phone number nobody called. The respondent was released from detention in 2019, and DHS told the court his address on an ICE Form I-830, which also listed a phone number. The court mailed his hearing notice to that address. It came back marked “unable to forward.” He missed the January 2020 hearing and was ordered removed. When he moved to reopen, his own documents confirmed the address was correct, and a postal employee’s letter explained that his mailbox had been full, so the mail was held 10 days and returned as unclaimed. An immigration judge and then the Board, in 2020, found the notice adequate.

The Ninth Circuit sent the case back in January 2026 to apply United States v. Rivera-Valdes, a 2025 decision built on the Supreme Court’s Jones v. Flowers. Its rule, as the Board quoted it: notice is not reasonably calculated to reach someone “when the Government knows its method of service was ineffective and takes no additional steps to effect notice that are reasonably available to it.” The respondent argued the judge could simply have called the number on the I-830.

Chief Appellate Immigration Judge Garry Malphrus, writing for a three-member panel, rejected that. Immigration courts are quasi-judicial bodies, not investigators, the Board reasoned, and the regulations put the burden on the parties: respondents must report address changes on Form EOIR-33, and DHS must report a released respondent’s address on Form I-830. A judge phoning a respondent would raise problems of ex parte contact, identity verification and the confidentiality protections of 8 U.S.C. 1367. The decision states that the court “mailed the hearing notice to the respondent’s correct address, and there was no other address in the record.”

The footnote that leaves a door open

The holding is narrower than its headnote suggests. The Board distinguished Rivera-Valdes, where the notice went to an address missing “Ave.,” and the Ninth Circuit’s September ruling in Meza Medina v. Blanche, where it went to an address supplied by a third party. Here, the address was right. The Board also noted that neither it nor immigration judges can see a respondent’s A-file, and added that “it is appropriate for DHS to inform the Board and Immigration Courts” when it learns of an address different from the one in the court record.

That sentence is likely to become the next battleground. A respondent who can show DHS had a newer address, from a USCIS filing or a check-in with ICE, and never passed it along, has a stronger due process argument than this respondent did, and Chamorro Castillo does not decide that case.

But there are instances when mails have been returned undelivered in spite of the address being correct and the situation is different from the instant case where the mail box was full. It is not clear how such a situation of returned mail with a correct address would be handled in terms of this new ruling.

Who an undeliverable hearing notice hurts most

EOIR’s adjudication statistics show 311,130 in absentia removal orders in fiscal 2025 and 281,867 in the first three quarters of fiscal 2026, against 34,330 in fiscal 2016. The subset most like this case, orders against respondents released from custody, reached 17,565 through the third quarter of fiscal 2026, already above the 16,003 recorded for all of fiscal 2025. For those people, the I-830 address DHS records at release may be the only address the court ever has.

The practical lesson is blunt. The regulations require a respondent to file Form EOIR-33 with the court within five days of moving, and the duty does not shift to the court when mail fails. Under this precedent, a returned envelope, even one returned because a mailbox overflowed, will not by itself support reopening.

The ruling applies to pending cases and motions to reopen now. It can be tested by a petition for review, and the Ninth Circuit, whose Rivera-Valdes and Meza Medina rulings set the test the Board applied, is the obvious forum. Because the question is constitutional, the court will decide it for itself rather than defer to the Board. The decision is the latest in a run of Volume 30 precedents that tighten procedure in removal cases, following rulings on the credibility of motion-to-reopen declarations and U visa continuances, at a time when even the size of the immigration court backlog is disputed.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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