FOR PUBLICATION

         UNITED STATES COURT OF APPEALS
             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 21-30177

                  Plaintiff-Appellee,               D.C. No.
    v.                                           3:19-cr-00408-
                                                      IM-1
LEOPOLDO RIVERA-VALDES,

                  Defendant-Appellant.              OPINION


           Appeal from the United States District Court
                     for the District of Oregon
           Karin J. Immergut, District Judge, Presiding

            Argued and Submitted November 9, 2022
                       Portland, Oregon

                       Filed June 17, 2024

Before: Patrick J. Bumatay and Gabriel P. Sanchez, Circuit
 Judges, and M. Miller Baker,* International Trade Judge.

*
  The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
2                     USA V. RIVERA-VALDES


                   Per Curiam Opinion;
               Concurrence by Judge Bumatay;
                Concurrence by Judge Baker;
                 Dissent by Judge Sanchez


                          SUMMARY**


                          Criminal Law

    In a per curiam opinion, the panel affirmed the district
court’s denial of Leopoldo Rivera-Valdes’s motion to
dismiss an indictment charging him with illegal reentry
under 

 in a case in which Rivera-Valdes,
who failed to appear at his 1994 deportation proceeding,
argued that immigration authorities violated his due process
rights by ordering him deported in absentia despite the
notice of the deportation hearing being returned as
undeliverable or unclaimed.
    The panel held that the deportation in absentia did not
violate due process. The panel wrote that whether Rivera-
Valdes actually received the notice, the government
followed its statutory obligations and reasonably attempted
to inform him of the hearing by mailing notice to his last
(and only) provided address. Rejecting Rivera-Valdes’s
argument that additional steps to notify him of his
deportation hearing were required under Jones v. Flowers,

 (2006), the panel disagreed with Rivera-Valdes


**
  This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   USA V. RIVERA-VALDES                    3


that this court has already adopted Jones’s “additional
reasonable steps” requirement in the immigration context;
disagreed with Rivera-Valdes that Jones’s “additional step”
framework applies here; and concluded that even if Jones’s
“additional reasonable steps” standard did supersede the
constitutional adequacy of notice as recognized in this
court’s cases, the government still satisfied due process
because no additional reasonable steps existed that were
practicable for it to take.
    Judge Bumatay concurred. He wrote that to the extent
this court is bound to use an interest-balancing framework to
address whether service of notice passes constitutional
muster, he joins the per curiam opinion. He wrote separately
to express his concerns with the dissent’s attempt to break
new constitutional ground to resolve this case by seeking to
import Jones’s “additional steps” requirement to the
immigration context.
    Court of International Trade Judge Baker concurred.
Noting that the per curiam opinion distinguishes Jones, he
wrote that if the court allowed the presumption of service to
be rebutted by merely showing that a notice of deportation
hearing was returned as unclaimed or undeliverable as the
dissent proposes, then it would reward an alien’s evasion,
throw sand in the gears of immigration efforts, and cast
doubt on the validity of tens, if not hundreds, of thousands
of deportations in absentia since 1996. He wrote that Jones
is also distinguishable because the property owner in that
case did not receive notice to expect notice.
    Judge Sanchez dissented. He wrote that despite
precedent clarifying that the general rules concerning
adequacy of notice apply in the immigration context, the
majority holds that Jones does not apply in the context of
4                   USA V. RIVERA-VALDES


immigration proceedings, and resolves the appeal by relying
on pre-Jones circuit precedent that did not address whether
mailed notice comports with due process when the
government knows its method of notice was ineffective and
takes no additional steps that are reasonably available to it.
He would vacate and remand for further proceedings.



                        COUNSEL

Sarah Barr (argued) and Suzanne Miles, Assistant United
States Attorneys; Amy E. Potter, Appellate Chief; Scott E.
Asphaug, United States Attorney, District of Oregon; United
States Department of Justice, Office of the United States
Attorney, Portland, Oregon; for Plaintiff-Appellee.
Kimberly-Claire E. Seymour (argued), Assistant Federal
Public Defender; Eugene, Oregon; for Defendant-Appellant.
                    USA V. RIVERA-VALDES                    5

OPINION

PER CURIAM:

    Thirty years ago, Leopoldo Rivera-Valdes failed to
appear at his deportation hearing and was ordered deported
in absentia. He did not attend this hearing despite being
directly given an order to appear and then being sent the date
of the hearing by certified mail at the address he provided to
immigration officials. In 2006, after being apprehended, he
was finally deported.
    After being deported, Rivera-Valdes again unlawfully
entered the United States. In 2019, he was charged with
illegal reentry under 

. In the district court,
he challenged the indictment, alleging that his 1994 in
absentia deportation order violated due process. The district
court denied the motion. Rivera-Valdes then entered a
conditional guilty plea, preserving the right to appeal the
constitutional challenge to his deportation. He now appeals.
   Because Rivera-Valdes failed to establish that his
deportation violated his due process rights, we affirm.
                              I.
    Rivera-Valdes, a citizen of Mexico, unlawfully entered
the United States in 1992. In December 1993, he applied for
asylum and work authorization, falsely claiming that he was
a citizen of Guatemala. In that application, Rivera-Valdes
provided his address as “4037 N. Cleveland, Portland, OR,
97212.” In January 1994, the then-Immigration and
Naturalization Service sent Rivera-Valdes a notice
acknowledging receipt of the asylum application by regular
mail to his Portland address.
6                   USA V. RIVERA-VALDES


    In two notices, dated February 3 and 8, the INS informed
Rivera-Valdes that his application for work authorization
was approved and instructed him to pick up the authorization
at a local INS office. Again, the INS mailed the notices to
the Portland address provided by Rivera-Valdes.
    Rivera-Valdes presumably received notice of the work
authorization approval because he showed up at the local
INS office to pick it up on March 3. There, he presented a
false Guatemalan birth certificate as proof of his identity.
But his deception was discovered. Immigration officials did
not hand Rivera-Valdes the work authorization, instead
serving him with an “order to show cause and notice of
hearing.” The order and notice directed him to appear at
deportation proceedings before an immigration judge at a
date to be calendared. An immigration official also read the
order to Rivera-Valdes in Spanish and he signed the notice,
acknowledging its receipt.
    The order and notice listed Rivera-Valdes’s Portland
address and warned him that he was required by law to
immediately notify the immigration court within five days of
any address change. It stated that “[a]ny notices will be
mailed only to the last address provided . . . .” The order and
notice further advised him that he would be ordered deported
in absentia if he failed to attend his deportation hearing.
Rivera-Valdes did not provide the government with any
notice of a change of address.
    On April 20, the INS moved the immigration court to
schedule a hearing and mailed a copy of the motion to
Rivera-Valdes at the Portland address. The postal service
returned the mail as “Not Deliverable As Addressed/Unable
To Forward.”
                   USA V. RIVERA-VALDES                   7


    On April 25, the immigration court sent Rivera-Valdes
notice that his deportation hearing was scheduled for August
12—this time, the notice was sent by certified mail. The
postal service returned this mailing as “unclaimed” a month
later.
   Rivera-Valdes failed to appear at his August 12
deportation hearing, and the immigration judge ordered him
deported in absentia.
                            II.
    A defendant charged with violating § 1326 may
collaterally attack his underlying deportation order. See
United States v. Martinez, 

 (9th Cir.
2015). To prevail, a defendant must show that (1) he
exhausted administrative remedies; (2) the deportation
proceedings improperly deprived him of an opportunity for
judicial review; and (3) the deportation order was
fundamentally unfair. 

(d); see also United
States v. Palomar-Santiago, 

 (2021). A
deportation order is fundamentally unfair if the defendant’s
due process rights were violated “by defects in his
underlying deportation proceeding,” and the defendant
suffered prejudice as a result. Martinez, 

.
                            A.
    On appeal, Rivera-Valdes argues that immigration
authorities violated his due process rights by ordering him
deported in absentia despite the notice of the deportation
hearing being returned as undeliverable or unclaimed. We
disagree.
   At the time of Rivera-Valdes’s 1994 deportation,
Congress required that each alien receive written notice of
deportation proceedings in person or “by certified mail.” 8
8                   USA V. RIVERA-VALDES


U.S.C. § 1252b(a)(1), (2) (repealed 1996). That statute
specified that the alien “must immediately provide” a contact
address and “must provide the Attorney General
immediately with a written record of any change of the
alien’s address.” Id. § 1252b(a)(1)(F)(i)–(ii). If the alien
failed to provide up-to-date address information, then
Congress said that “written notice shall not be required.” Id.
§ 1252b(a)(2). And if the alien failed to attend deportation
proceedings after being given notice “at the most recent
address provided,” Congress commanded that the alien “be
ordered deported . . . in absentia” so long as the notice
requirements were met. Id. § 1252b(c)(1).
    Under this statutory regime, service of a deportation
notice by certified mail only created a rebuttable
“presumption of proper delivery.” Arrieta v. INS, 

 (9th Cir. 1997). If an alien could “establish that her
mailing address has remained unchanged, that neither she
nor a responsible party working or residing at that address
refused service, and that there was nondelivery or improper
delivery by the Postal Service, then she [had] rebutted the
presumption of effective service.” 

. The burden
then shifted to the government “to show that a responsible
party refused service.” 

    More than 25 years ago, we concluded that the
government’s compliance with these notice provisions
satisfied due process, even if the alien did not “actually
receive notice of [the] deportation hearing.” Farhoud v. INS,

 (9th Cir. 1997). In that case, the notice
was sent by certified mail to the address provided by the
alien and acknowledged by someone at that address. 

 The
alien claimed that he “did not actually and personally receive
the notice of hearing.” 

 That fact did not make a
difference because, we said, “due process is satisfied if
                    USA V. RIVERA-VALDES                     9


service is conducted in a manner ‘reasonably calculated’ to
ensure that notice reaches the alien.” 

 And the certified
mailing was enough to meet this standard. 

    In the following years, we repeatedly affirmed that
mailing notice of immigration proceedings to an alien’s last
provided address is constitutionally sufficient. See, e.g.,
Urbina-Osejo v. INS, 

 (9th Cir. 1997)
(“Notice of a deportation hearing sent by regular mail to the
last address provided by the alien to the INS satisfies the
requirements of constitutional due process[.]” (simplified));
United States v. Hinojosa-Perez, 

 (9th Cir.
2000) (holding that an alien’s “attempt to claim prejudice
from the failure to send notice to a place where he no longer
lived is unpersuasive” given that he was “adequately warned
of his responsibility to keep his address current”); Dobrota
v. INS, 

 (9th Cir. 2002) (finding that the
government satisfies due process “by mailing notice of [a]
hearing to an alien at the address last provided”).
    We held the same in Popa v. Holder, 

 (9th
Cir. 2009), overruled on other grounds by Lopez v. Barr, 

 (9th Cir. 2019). In that case, the government mailed
a notice to appear to the alien’s last provided address in
Nevada. Id. at 898. The alien then moved to California
without informing the government, which later mailed a
hearing notice to her Nevada address. Id. As a result, the
alien didn’t receive the notice and missed her removal
proceeding, and an immigration judge ordered her removed
in absentia. Id. at 893. None of this posed a due process
problem. As we said, an alien “does not have to actually
receive notice of a deportation hearing in order for the
requirements of due process to be satisfied.” Id. at 897.
Instead, due process “is satisfied if service is conducted in a
manner ‘reasonably calculated’ to ensure that notice reaches
10                  USA V. RIVERA-VALDES


the alien.” Id. (quoting Farhoud, 

). There,
the alien’s “right to due process was not violated because the
Immigration Court mailed notice of her hearing to [her] last
provided address.” 

.
    Here, our precedent shows that the government complied
with due process. Rivera-Valdes provided the government
with his Portland address in his asylum application. The
government personally served him with the order and notice
that instructed him to inform the government of any change
to his address. Not only that, but an immigration official
read the order to him. Rivera-Valdes gave no change of
address. The government then sent notice of his deportation
hearing to his Portland address via certified mail. Whether
he actually received the notice, the government followed its
statutory obligations and reasonably attempted to inform
him of the hearing by mailing notice to his last (and only)
provided address. We thus hold that Rivera-Valdes’s
deportation in absentia did not violate due process.
                              B.
    Despite this clear precedent, Rivera-Valdes argues on
appeal that the government should have taken additional
steps to notify him of his deportation hearing because,
according to him, such steps were required under Jones v.
Flowers, 

 (2006). In Jones, the Supreme Court
considered the due process rights of a homeowner whose
house was forcibly sold by the State for failure to pay
property taxes. To notify the homeowner, the State sent two
notices of the tax sale by certified mail to the house that were
returned as “unclaimed.” 

 at 223–24. The State then sold
the home. 

 The Court said that these procedures violated
due process. In “extinguishing a property owner’s interest
in a home,” 

, “the State should have taken
                   USA V. RIVERA-VALDES                   11


additional reasonable steps to notify [the homeowner], if
practicable to do so,” 

.
   Jones does not help Rivera-Valdes for three reasons.
    First, we disagree that our court has already adopted
Jones’s “additional reasonable steps” requirement in the
immigration context. While we must, of course, follow the
binding precedent of prior panels, see Miller v. Gammie, 

 (9th Cir. 2003) (en banc), this applies only
when a prior panel “squarely addresses” the issue, United
States v. Kirilyuk, 

 (9th Cir. 2022)
(simplified). “Questions which merely lurk in the record,
neither brought to the attention of the court nor ruled upon,
are not to be considered as having been so decided as to
constitute precedents.” United States v. Ped, 

 (9th Cir. 2019) (simplified). Thus, when a “prior case
does not raise or consider the implications of a legal
argument, it does not constrain” a new panel’s analysis.
Kirilyuk, 

 (simplified).
    Neither Rivera-Valdes nor the dissent cites any case
applying Jones’s “additional reasonable steps” framework to
the immigration context. The dissent principally relies on
Williams v. Mukasey, 

 (9th Cir. 2008),
to claim that we applied Jones’s broad ruling to immigration
proceedings. But in Williams, we cited Jones only once, and
we did so only to support the Supreme Court latest’s
articulation of the well-known Mullane v. Central Hanover
Bank & Trust Co., 

 (1950), due process
standard. The sum total of Williams’s invocation of Jones
was this:

       Under that framework, “due process requires
       the government to provide ‘notice reasonably
12                  USA V. RIVERA-VALDES


       calculated, under all the circumstances, to
       apprise interested parties of the pendency of
       the action and afford them an opportunity to
       present their objections.’” Jones v. Flowers,
       

, 

, 

 (2006) (quoting Mullane, 

, 

).

Williams thus didn’t apply Jones’s “additional reasonable
steps” framework to the immigration context. None of the
other precedential cases cited by the dissent apply Jones’s
“additional reasonable steps” requirement either. See
Chaidez v. Gonzales, 

, 1086 n.8 (9th Cir. 2007)
(declining to address Jones in the context of who is a
“responsible person[]” for the delivery of certified mail); Al
Mutarreb v. Holder, 

, 1027–28 (9th Cir. 2009)
(mentioning Jones but declining to resolve questions about
adequacy of notice in that case by assuming it was
sufficient).
    Second, we disagree that Jones’s “additional step”
framework applies here. The notice required by due process
“will vary with circumstances and conditions,” Jones, 

 (quoting Walker v. City of Hutchinson, 

 (1956)), and “assessing the adequacy of a particular
form of notice requires balancing the ‘interest of the
[government]’ against ‘the individual interest sought to be
protected by the [Due Process Clause]’” in the circumstances
at issue, 

 at 229 (quoting Mullane, 

). In
the immigration context, we’ve said that “actual notice” is
unnecessary and that service must only be “‘reasonably
calculated’ to ensure that notice reaches the alien.” Farhoud,

.
                        USA V. RIVERA-VALDES                             13


    The statutory regime in place at the time of Rivera-
Valdes’s 1994 deportation hearing was “‘reasonably
calculated’ to ensure that” Rivera-Valdes received notice.
See 

 This statutory scheme, which required aliens to
update their addresses and permitted aliens to rebut the
presumption of service, distinguishes this case from Jones
and adequately balances the relevant competing interests in
the immigration context.
    Indeed, the contexts of Jones and deportation
proceedings are quite different. An alien who has unlawfully
entered the country has obvious reasons to avoid appearing
for a deportation hearing—unlike a property owner, who has
no reason to ignore an imminent tax sale. Requiring the
government to do more than send notice to the last address
provided would reward evasion of service. Thus, by failing
to comply with his statutory obligations, Rivera-Valdes
“relieve[d] the government of its responsibility to provide”
him with any more notice of the hearing. See Popa, 

.1
     Third, even if Jones’s “additional reasonable steps”
standard did supersede the constitutional adequacy of notice
as recognized in our cases, the government still satisfied due
process because no additional reasonable steps existed that
were practicable for it to take. Rivera-Valdes was personally
served the “order to show cause and notice of hearing”
initiating his deportation proceedings, which was also read
to him. The order and notice warned Rivera-Valdes that he
must update his address and told him that future notices
would be sent to him by mail only. The government then

1
 We express no view on Jones’s application in the immigration context
outside of the statutory regime that existed in 1994, at the time of Rivera-
Valdes’s deportation hearing.
14                      USA V. RIVERA-VALDES


sent Rivera-Valdes notice of the deportation hearing by
certified mail to the only address he provided. Not only that,
the government also used regular mail to send its motion to
schedule the hearing. These mailings were returned as
“unclaimed” or “not deliverable.” See Jones, 

 (explaining that resending by regular mail an unclaimed
notice of hearing previously sent by certified mail is a
reasonable follow-up measure). The government possessed
no other information about Rivera-Valdes’s whereabouts.
Given this, under Jones, there were no practicable,
reasonable steps left for the government to take. 

(“[I]f there were no reasonable additional steps the
government could have taken upon return of the unclaimed
notice letter, it cannot be faulted for doing nothing.”).2
                                  III.
   We thus affirm the district court’s denial of the motion to
dismiss.
     AFFIRMED.




2
  The dissent would give Rivera-Valdes another bite at the apple by
remanding for the district court to consider whether there were any
additional, reasonable steps the government could have taken. Even if
we agreed that Jones applied here, we fail to see how a remand could
further develop the factual record about events that transpired thirty
years ago. Moreover, we note that Rivera-Valdes raised his Jones
argument for the first time on appeal, which explains why the district
court never considered this issue in the first instance. He can hardly
complain about our failure to remand to the district court a question that
he never addressed below.
                    USA V. RIVERA-VALDES                    15


BUMATAY, Circuit Judge, concurring:

     As the per curiam opinion establishes, this is a
straightforward case under our precedent. The government
sent notice of the deportation hearing by certified mail to the
last address provided by Leopoldo Rivera-Valdes. Case after
case says that this satisfies due process and that there’s
nothing wrong with the in absentia deportation order here.
To the extent that our court is bound to use an interest-
balancing framework to address whether service of notice
passes constitutional muster, see Mullane v. Central
Hanover Bank & Trust Company, 

 (1950),
I join the per curiam opinion. But I write separately to
express my concerns with the dissent’s attempt to break new
constitutional ground to resolve this case.
                              I.
    Due process is context specific. When it comes to
immigration, courts have “largely defer[red] to the political
branches” on what process is due to aliens in removal
proceedings. Rodriguez Diaz v. Garland, 

,
1215 (9th Cir. 2022) (Bumatay, J., concurring). That’s
because “the admission and exclusion of foreign nationals is
a fundamental sovereign attribute exercised by the
Government’s political departments largely immune from
judicial control.” Trump v. Hawaii, 

(2018) (simplified). Thus, it’s firmly established that
“Congress may make rules as to aliens that would be
unacceptable if applied to citizens.” Demore v. Kim, 

 (2003).
   Rather than accept this principle, the dissent pursues a
novel ruling—one that would upend how many immigration
proceedings operate. Despite the government’s compliance
16                  USA V. RIVERA-VALDES


with applicable statutory notice requirements, the dissent
says that’s not enough and now the government must also
meet the extra burdens set out in Jones v. Flowers, 

 (2006). To my knowledge, no circuit court has ever
required this.
    It’s easy to see why Jones doesn’t directly apply to the
immigration context. In Jones, the Supreme Court held that
due process requires the government to “take additional
reasonable steps to provide notice” to a homeowner “before
taking the owner’s property.” 

. There, Gary Jones
owned a house in Little Rock, Arkansas, for over 30 years.

 He paid the mortgage on the house for 30 years. 

 For
those 30 years, the mortgage company paid Jones’s property
taxes. 

 But after he finished paying off the mortgage, the
property taxes went unpaid. 

 The State declared the
property delinquent and sought to sell the home. 

 To
notify Jones, the State sent two notices of the forced tax sale
to the home by certified letter. 

 at 223–24. Both letters
were returned to the State as “unclaimed.” 

. The
State sold Jones’s house despite the return of its two notices.

 The buyer, Linda Flowers, then moved to evict Jones’s
daughter from the house, which led to the case being brought
before the Court. 

 at 224–25. These procedures, the Court
said, violated due process. To sell a property owner’s house,
the Court held that “the State should have taken additional
reasonable steps to notify [the homeowner], if practicable to
do so.” 

.
    For the first time in our circuit, the dissent seeks to
import Jones’s “additional steps” requirement to the
immigration context. According to the dissent, if the
government discovers that notice of immigration
proceedings has failed to reach an alien, that “triggers an
obligation on the government’s part to take additional
                    USA V. RIVERA-VALDES                    17


reasonable steps to effect notice” on the alien “if it is
practicable to do so.” Dissent 26 (citing Jones, 

). While our court has cited Jones for general due
process principles in immigration cases, no decision has ever
required the government to take “additional reasonable steps
to effect notice” if it learns that an alien failed to receive
actual notice.
   There are at least four problems with expanding due
process like this.
    First, the dissent’s view of the law conflicts with circuit
precedent. Our caselaw makes clear that certified mailing of
notice to the last provided address is constitutionally
adequate—even if the alien did not receive actual notice.
See Per Curiam Op. 8–10. And our court has continued to
adhere to this precedent after Jones was decided in 2006, and
even after Williams v. Mukasey, 

 (9th
Cir. 2008), which the dissent thinks governs, was decided in
2008. See, e.g., Popa v. Holder, 

 (9th Cir.
2009), overruled on other grounds by Lopez v. Barr, 

 (9th Cir. 2019); Poursina v. USCIS, 

,
876 (9th Cir. 2019) (holding that the government “satisfie[s]
due process [when] it sen[ds] notice by regular mail to the
address given.”) (simplified). Indeed, the only difference
between this case and all the other cases upholding in
absentia removals in similar circumstances is that the
government became aware that notice was “undeliverable”
or “unclaimed.” But that distinction isn’t enough to upset
our precedent when the government acted reasonably in
attempting to notify Rivera-Valdes.
    Second, there’s no reason to graft the procedural
protections required to remove a person from his home onto
the process to remove an illegal alien from this country. As
18                  USA V. RIVERA-VALDES


the Supreme Court has said, the regulation of immigration is
a “fundamental sovereign attribute” under our Constitution.
See Trump, 

. So “the removal context is a
unique enclave” when it comes to due process. Rodriguez
Diaz, 53 F.4th at 1216 (Bumatay, J., concurring). And the
due process rules for forfeiting a citizen’s home do not easily
map onto immigration proceedings. Recall that “Congress
may make rules as to aliens that would be unacceptable if
applied to citizens.” Demore, 

. Thus, while
illegal aliens are protected by due process, that doesn’t mean
they are entitled to the full panoply of rights afforded to a
person whose home is being seized by the government.
Above all, Jones was expressly animated by the
government’s “exerti[on of] extraordinary power against a
property owner—taking and selling a house he owns.” 

. And so, the Court reasoned, it was not asking
“too much to insist that the State do a bit more to attempt to
let him know about it when the notice letter addressed to him
is returned unclaimed.” 

 Though the removal of an alien
is no doubt a solemn process, the rights involved are not the
same.
    Third, note that the dissent doesn’t say what additional
steps the government should have taken here. Instead, the
dissent’s preferred remedy is for our court to remand this
case so that the district court can figure it all out. But given
that the government possessed no other information about
Rivera-Valdes’s whereabouts, what additional steps could
the government have taken? Short of ordering the
government to conduct a manhunt for Rivera-Valdes, it’s
hard to think of any. Not only would such a requirement
contravene our precedent, see Popa, 

 (noting
that an alien “does not have to actually receive notice of a
deportation hearing in order for the requirements of due
                    USA V. RIVERA-VALDES                    19


process to be satisfied”), but it would constitute a profound
intrusion into the executive branch. In fact, Rivera-Valdes
likely failed to update his address precisely because he did
not want the government to know where he was. Forcing the
government to engage in a game of cat-and-mouse,
attempting to provide notice to those who have every reason
to evade government attention, is beyond the requirements
of due process and thoroughly unworkable. Even accepting
Jones, the Court said that the government need not go very
far to provide actual notice. See Jones, 547 U.S. at 235–36
(“We do not believe the government was required to go [so]
far” as searching for a new address in the phonebook or other
government records such as income-tax rolls). And we can’t
just throw up our hands and ask the district court to solve the
issue for us.
     Fourth, I fear what this view of the law would mean for
immigration proceedings writ large. Importing Jones’s
“additional reasonable steps” requirement to the
immigration setting would put on unsure footing every
removal, deportation, and immigration conviction where the
government had any inkling that the alien did not receive
actual notice. The result would wreck the federal courts’
dockets with an explosion of litigation and require the
government to re-examine the adequacy of its notice
procedures for the entire immigration system. It would
undermine finality for hundreds, if not thousands, of cases.
While this would be the price to pay if due process requires
it, nothing in the text and historical understanding of the
Fifth Amendment supports this. We should not court chaos
so carelessly.
20                     USA V. RIVERA-VALDES


BAKER, Judge, concurring:

    The per curiam opinion, which I join, applies the due
process balancing test of Mullane v. Central Hanover Bank
& Trust Co., 

, 313–15 (1950).1 Ante at 11–12.
In so doing, it distinguishes Jones v. Flowers, 

(2006), reasoning that the statutory scheme in place at the
time of Rivera-Valdes’s 1994 deportation hearing
adequately balanced the relevant competing interests by
giving him the right to rebut the presumption of effective
service. Ante at 13. Under that regime, Rivera-Valdes could
have done so by demonstrating that his “mailing
address . . . remained unchanged, that neither [he] nor a
responsible party working or residing at that address refused
service, and that there was nondelivery or improper delivery
by the Postal Service . . . .” Arrieta v. I.N.S., 

 (9th Cir. 1997). He made no such showing below.
    If we allowed the presumption of service to be rebutted
by merely showing that a notice of deportation hearing was
returned as unclaimed or undeliverable as the dissent
proposes,2 then it would reward an alien’s evasion and throw

1
  Binding precedent holds that the Due Process Clause applies to
deportation (now known as removal) hearings. See Reno v. Flores, 

 (1993) (“It is well established that the Fifth Amendment
entitles aliens to due process of law in deportation proceedings.”); see
also Dobrota v. INS, 

 (9th Cir. 2002) (“Aliens facing
deportation are entitled to due process under the Fifth Amendment to the
United States Constitution, encompassing a full and fair hearing and
notice of that hearing.”).
2
 Although this case involves an unclaimed certified mailing, under the
dissent’s logic a returned regular mailing would also rebut the
presumption of service and require the government to at least consider
                        USA V. RIVERA-VALDES                             21


sand in the gears of immigration enforcement efforts. Cf.
Terminiello v. City of Chicago, 

 (1949)
(Jackson, J., dissenting) (stressing the importance of “a little
practical wisdom” in applying the “constitutional Bill of
Rights”). It would also cast doubt on the validity of tens, if
not hundreds, of thousands of the nearly 1.4 million (and
counting) deportations in absentia since 1996, and some
untold number before that.3 Due process, however, does not

what other means were available to provide notice to the alien. This
matters because federal law mandated service of a notice of deportation
by certified mail from 1990 through 1996. Immigration Act of 1990, 

(a), 

, 5061–62. Congress then changed
the statute to require service by regular mail, 

, 

, 3009-587 to 3009-589 (1996), a requirement that persists to
this day, see 

.
     Before 1990, the law left the manner of service to the agency’s
discretion: “[T]he alien shall be given notice, reasonable under all the
circumstances, of the nature of the charges against him and of the time
and place at which the proceedings will be held.” Immigration and
Nationality Act of 1952, 

, 

, 209. From
1979 to 1990, service of a notice of hearing could be accomplished by
either personal service or regular mail. See 

(c) (1979)
(describing available means to serve a notice of hearing as “personal
service or . . . routine service”); 

.5a(a)(1) (1979) (defining
“routine service” as service by regular mail). From 1957 to 1979, the
agency served such notices personally or by certified mail. See 

(c) (1958).
3
  As detailed in the attached addendum, the government deported 1.376
million aliens in absentia from 1996 through the first quarter of fiscal
year 2024. (Like others, I have been unable to locate such data for years
before 1996. See Ingrid Eagly & Steven Shafer, Measuring In Absentia
Removal in Immigration Court, 

, 823 n.25 (2020)
(explaining that the Executive Office for Immigration Review was
unable to provide FOIA-requested removal in absentia data for years not
included its 2000 statistical yearbook, i.e., 1995 and earlier)).
22                     USA V. RIVERA-VALDES


“place [such] impossible or impractical obstacles in the way”
of the government protecting its “vital interest[s],” Mullane,
339 U.S. at 313–14, which surely include thwarting unlawful
entry into the United States.
    Jones is also distinguishable for a second reason—the
property owner in that case did not “receive[] notice to
expect notice.” Derezinski v. Mukasey, 

(7th Cir. 2008) (Posner, J.). Here, in contrast, immigration
officials personally served Rivera-Valdes with an order to
show cause and notice that he would be mailed a deportation
hearing date.
    In the context of unlawful entry into the United States,
notice to expect notice of a deportation hearing also
adequately balances the competing interests of the alien and
the government. “The Constitution does not require that an
effort to give notice succeed.” Ho v. Donovan, 

 (7th Cir. 2009) (Easterbrook, J.) (citing Dusenbery v.
United States, 

 (2002)). “If it did, then people
could evade knowledge, and avoid responsibility for their
conduct, by burning notices on receipt—or just leaving them
unopened,” 

 or, I might add, by declining—as Rivera-
Valdes did—to notify the government of any change in


    The Postal Service reports that in fiscal year 2014, 4.3 percent of
mail was returned as undeliverable. See https://www.uspsoig.gov/reports
/audit-reports/management-advisory-strategies-reducing-undeliverable-
addressed-mail. Using that percentage as a conservative proxy yields the
conclusion that the notice of deportation was returned as unclaimed or
undeliverable in at least 60,000 deportations in absentia since 1996. In
my view, the actual number is likely far larger because individuals
seeking to evade deportation are not a representative sample of available
data involving unclaimed mail. Such persons of necessity move more
often than the general population and have every reason not to keep
immigration authorities advised of their whereabouts.
                      USA V. RIVERA-VALDES                        23


address after receiving notice to expect notice.4 “Conscious
avoidance of information is a form of knowledge.” 

4
 On this record, common sense tells us that Rivera-Valdes absconded
because the INS’s motion to schedule his hearing sent by regular mail
was returned as “Not Deliverable As Addressed/Unable to Forward.”
24                     USA V. RIVERA-VALDES


         Addendum to Judge Baker’s Concurrence
     In Absentia Removal (Deportation) Orders, 1996–2024
      Fiscal Year    Number               Source
         1996             54,178 2000 EOIR Statistical
         1997             48,461        Yearbook1
         1998             42,243 2002 EOIR Statistical
         1999             40,719        Yearbook2
         2000             39,721
         2001             36,764
         2002             37,316 2006 EOIR Statistical
         2003             36,948        Yearbook3
         2004             47,407
         2005           100,937 2009 EOIR Statistical
         2006           102,850         Yearbook4
         2007             35,578
         2008             21,360
         2009             18,658
         2010             20,412

1
  Exec. Office for Immigration Review, Statistical Year Book 2000, at
L1, https://www.justice.gov/sites/default/files/eoir/legacy/2001/05/09
/SYB2000Final.pdf.
2
  Exec. Office for Immigration Review, Statistical Year Book 2002, at
H1, https://web.archive.org/web/20060629172106/http://www.justice
.gov/eoir/statspub/fy02syb.pdf.
3
  Exec. Office for Immigration Review, FY 2006 Statistical Yearbook, at
H1, https://www.justice.gov/sites/default/files/eoir/legacy/2008/04/18
/fy06syb.pdf.
4
  Exec. Office for Immigration Review, FY 2009 Statistical Yearbook, at
H1, https://www.justice.gov/sites/default/files/eoir/legacy/2010/03/04
/fy09syb.pdf.
                      USA V. RIVERA-VALDES                       25


      2011                 18,467       2018 EOIR Report5
      2012                 16,491
      2013                 18,345
      2014                 25,909       2024 EOIR Report6
      2015                 38,260
      2016                 34,305
      2017                 42,044
      2018                 46,213
      2019                 91,285
      2020                 87,843
      2021                  8,536
      2022                 62,646
      2023                159,720
    2024 (first            42,714
     quarter)
      Total             1,376,330




5
  Exec. Office for Immigration Review, In Absentia Removal Orders
(2018),       https://web.archive.org/web/20180611231211/https://www
.justice.gov/eoir/page/file/1060851/download.
6
  Exec. Office for Immigration Review, In Absentia Removal Orders
(2024), https://www.justice.gov/d9/pages/attachments/2020/02/04/20_
in_absentia_removal_orders_0.pdf.
26                 USA V. RIVERA-VALDES


SANCHEZ, Circuit Judge, dissenting:

    When the adequacy of the government’s notice to a
proceeding is challenged under the Due Process Clause of
the Fifth or Fourteenth Amendments, we analyze such
claims under Mullane v. Central Hanover Bank & Trust Co.,

 (1950), and Jones v. Flowers, 

(2006). Under the Supreme Court’s precedents, if the
government becomes aware that its attempt to provide notice
has failed, for example when mailed notice of a proceeding
is returned unclaimed, that knowledge obligates the
government to take additional reasonable steps to effect
notice, if it is practicable to do so. See Jones, 

. Since Jones was decided, we have applied these due
process requirements in a wide range of government
proceedings affecting real property, chattel, government
benefits, licenses, privacy, and other legally protected
interests. See infra 31–32. Notably, our court has already
“clarif[ied] that the general rules concerning adequacy of
notice [under Mullane and Jones] … apply in the
immigration context.” See Williams v. Mukasey, 

 (9th Cir. 2008).
    Despite this clear precedent, the majority holds that
Jones does not apply in the context of immigration
proceedings. The majority offers no plausible explanation
why the due process protections announced in Jones should
bypass immigrant petitioners, and it errs by disregarding our
binding precedent in Williams. See Balla v. Idaho, 

, 1028 (9th Cir. 2022) (“We are bound by the law of our
circuit, and only an en banc court or the U.S. Supreme Court
can overrule a prior panel decision.”). Compounding its
mistake, the majority resolves this appeal by relying on pre-
Jones circuit precedent that did not address whether mailed
                    USA V. RIVERA-VALDES                   27


notice comports with due process when the government
knows its method of notice was ineffective and takes no
additional steps that are reasonably available to it. As Jones
and other decisions of our circuit make clear, mere
adherence to statutory notice requirements does not resolve
whether the government has satisfied its constitutional
obligations. Because the district court did not analyze
appellant’s due process challenge under Jones, I would
vacate and remand for further proceedings before the district
court. I respectfully dissent.
                              I.
    A defendant may collaterally attack the removal order
underlying an indictment for illegal reentry under 

 by arguing that the proceeding that produced the
order violated his Fifth Amendment right to due process.
United States v. Mendoza-Lopez, 

 (1987);
see, e.g., United States v. Melendez-Castro, 

 (9th Cir. 2012). To prevail, the defendant must show (1)
he exhausted administrative remedies for the removal order;
(2) the deportation proceedings improperly deprived him of
an opportunity for judicial review; and (3) entry of the
removal order was fundamentally unfair.            

(d); see also United States v. Palomar-Santiago, 

, 324–25 (2021). “An underlying order is
‘fundamentally unfair’ if (1) a defendant’s due process rights
were violated by defects in his underlying deportation
proceeding, and (2) he suffered prejudice as a result of the
defects.” United States v. Alvarado-Pineda, 

 (9th Cir. 2014).
   Appellant Leopoldo Rivera-Valdes (“Rivera-Valdes”)
moved to dismiss his indictment, claiming that the
underlying removal proceedings violated his right to due
28                 USA V. RIVERA-VALDES


process under the Fifth Amendment because the mailed
notice of hearing was not “reasonably calculated to reach”
him. Although he was personally served with an Order to
Show Cause (“OSC”), the OSC did not advise him of the
date, time, and place of his removal hearing, instead stating
that the hearing was “to be calendared and notice provided”
at a later date. Appellant’s motion to dismiss asserted that
the notice of hearing was not reasonably calculated to reach
him because the agency sent the notice by certified mail to
an address that did not exist and the notice was returned to
the agency as “unclaimed.”
    The district court, reaching no other legal question,
concluded the notice of hearing was “reasonably calculated”
when sent by certified mail to the address listed on his
asylum application and denied the motion to dismiss. The
court relied on pre-2006 precedent to conclude that the
government satisfies due process by “mailing notice of the
hearing to an alien at the address last provided to the INS.”
Dobrota v. INS, 

 (9th Cir. 2002). See
also Urbina-Osejo v. INS, 

 (9th Cir.
1997); United States v. Hinojosa-Perez, 

, 836–
37 (9th Cir. 2000).
    On appeal, Rivera-Valdes contends the agency did not
use means reasonably calculated to notify him of his removal
hearing when the agency sent notice by certified mail,
learned the notice had gone unclaimed, and took no
additional reasonable steps to effect notice. The government
does not meaningfully dispute Rivera-Valdes’s factual
assertions nor his constitutional right to reasonably
calculated notice. Instead, the government contends sending
notice by certified mail to the address listed on the asylum
application was sufficient to satisfy both statutory and
constitutional requirements. In short, the parties dispute
                    USA V. RIVERA-VALDES                   29


what “reasonably calculated” notice requires under the
circumstances presented here.
                             II.
    Where due process requires notice of government action,
Mullane and Jones provide “the ‘appropriate analytical
framework’ for considering the adequacy of notice of
government action.” Williams, 

. “[D]ue
process requires the government to provide ‘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.’”
Jones, 

 (quoting Mullane, 

).
As Mullane explains, “[t]he means employed must be such
as one desirous of actually informing the absentee might
reasonably adopt to accomplish it.” 

.
Adequate notice does not require actual notice. See
Dusenbery v. United States, 

 (2002). But
adequate notice will generally require something more than
employing means that knowingly result in a failure to
provide notice—as Jones elaborated.
     In Jones, the Arkansas Commissioner of State Lands
sent two notices to petitioner Gary Jones by certified mail
that his property taxes were delinquent. 547 U.S. at 223–24.
The notices explained that unless Jones redeemed the
property, it would be subject to public sale. 

 Both
certified letters were sent to the address registered by Jones
and both were returned “unclaimed.” 

. The
Commissioner took no further steps to notify Jones of his tax
delinquency. 

. The home was sold at a tax
foreclosure sale to respondent Linda Flowers at a fraction of
its fair market value. 

. Following the sale, Jones
sued the Commissioner and Flowers in state court, asserting
30                    USA V. RIVERA-VALDES


that the Commissioner’s failure to provide adequate notice
of the tax sale and resulting loss of his home was a violation
of his right to due process. 

 The Arkansas Supreme Court
affirmed the trial court’s grant of summary judgment for the
defendants, holding that attempting notice by certified mail
in accordance with state law satisfied due process. 

 at
224–25.
    The Supreme Court reversed and held that “when mailed
notice of a tax sale is returned unclaimed, the State must take
additional reasonable steps to attempt to provide notice to
the property owner before selling his property, if it is
practicable to do so.” 

. The Court reasoned that “a
person who actually desired to inform” another would not
“do nothing when a certified letter . . . is returned
unclaimed.” 

 (emphasis added). Adequacy of
notice still depends on “‘all the circumstances.’” 

 at 226
(quoting Mullane, 

). But after Jones,
“knowledge on the government’s part is a ‘circumstance and
condition’ that varies the ‘notice required.’” 

 at 227
(quoting Walker v. City of Hutchinson, 

(1956)).1 Even when notice is reasonably calculated to reach
a party when first sent, the government’s discovery that the
notice has failed to reach the intended recipient is a new

1
  This concept was latent in prior Supreme Court opinions. See, e.g.,
Greene v. Lindsey, 

, 453–54 (1982) (holding notice of
detainer action posted on apartment door was inadequate where process
servers were aware the postings were torn down and unlikely to reach
intended tenants); Robinson v. Hanrahan, 

 (1972) (per
curiam) (holding notice of forfeiture proceeding was inadequate where
government officials knew vehicle owner was jailed and mailed notice
was unlikely to reach him); Covey v. Town of Somers, 

(1956) (holding notice of foreclosure by mailing and publication was
inadequate where government officials knew the property owner was not
mentally competent to manage her affairs and was without a guardian).
                    USA V. RIVERA-VALDES                    31


condition requiring reassessment. 

. Under such
circumstances, the Supreme Court concluded, the
Commissioner was required to take additional, reasonable
steps to effect notice, if it was practicable to do so. 

.
    We have applied Jones’s due process analysis to evaluate
the adequacy of notice in many contexts—from government
proceedings affecting real property, chattel, and money to
proceedings affecting licenses, privacy, and other protected
legal interests. See, e.g., Yi Tu v. Nat’l Transp. Safety Bd.,

, 946 (9th Cir. 2006) (applying Jones to pilot
license suspension proceedings); J.B. v. United States, 

, 1173–74 (9th Cir. 2019) (applying Jones to
subpoena of tax records); Grimm v. City of Portland, 

, 1067–68 (9th Cir. 2020) (applying Jones to
towing of car); Taylor v. Yee, 

, 935–38 (9th Cir.
2015) (applying Jones in action challenging California’s
escheatment statute).
    Our sister circuits have also applied Jones to evaluate the
adequacy of notice in various government proceedings. See,
e.g., García-Rubiera v. Fortuño, 

 (1st Cir.
2011) (financial action); D.R.T.G. Builders, LLC v.
Occupational Safety & Health Review Comm’n, 

 (5th Cir. 2022) (OSHA action); Echavarria v. Pitts,

, 94–95 (5th Cir. 2011) (DHS action); Lampe v.
Kash, 

, 943–44 (6th Cir. 2013) (bankruptcy
action); Peralta-Cabrera v. Gonzales, 

(7th Cir. 2007) (DHS action). These decisions confirm that
when notice is due in a government action, the Mullane-
Jones framework governs whether such notice is
constitutionally sufficient.
32                     USA V. RIVERA-VALDES


    As we made clear in Williams, the same due process
analysis governs the adequacy of notice afforded in
immigration proceedings. Williams, 

. In
Williams, the petitioner moved to reopen a final order of
removal pursuant to regulations implementing the United
States’ obligations under the Convention Against Torture
(“CAT”). 

. Petitioner missed the deadline
established in the CAT regulations for filing a motion to
reopen and argued that notice through publication in the
Federal Register was insufficient to afford her due process.

. Williams held that petitioner’s due process
challenge must be evaluated under the Mullane-Jones
“’analytical framework,’” that is, “due process requires the
government to provide ‘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.’” 

 (quoting Jones, 

).2
    The majority’s contention that Jones does not apply in
immigration proceedings flatly contradicts what was stated
in Williams and contravenes the long-settled principle that
only an en banc court or the Supreme Court can overrule a
prior panel decision. Miller v. Gammie, 

, 899–
900 (9th Cir. 2003) (en banc). While Williams did not
involve the government discovering that its notice to a
petitioner had not succeeded, that left open the question of
how the due process analysis under Jones would apply in a

2
  We rejected the petitioner’s argument that she was entitled to actual
notice and concluded that publication in the Federal Register was
sufficient notice under the circumstances because “Petitioner cannot
establish that the government had anything more than speculative
knowledge that she was eligible for CAT relief when the regulations were
promulgated.” 

                     USA V. RIVERA-VALDES                       33


different immigration case, not whether Jones should apply
to immigration proceedings at all. Williams squarely
addressed whether the Mullane-Jones due process
framework applies in immigration proceedings. It does, and
it is error for this panel to ignore it. Because the district court
below never addressed whether the government had
reasonable alternatives available to effect notice in this case,
I would remand and direct it to apply Jones in the first
instance. See Jones, 

.
                               III.
    Even if Williams were not binding authority, the
majority’s assertion that immigration proceedings are
different and less deserving of the same due process
protections under Jones is unconvincing and breaks with
decades of precedent. We have reaffirmed time and again
that “[t]he Due Process Clause protects aliens in deportation
proceedings and includes the right to a full and fair hearing
as well as notice of that hearing.” Farhoud v. INS, 

 (9th Cir. 1997) (citing Landon v. Plasencia, 

, 32–33 (1982)). See also Dobrota, 

(“Aliens facing deportation are entitled to due process under
the Fifth Amendment to the United States Constitution,
encompassing a full and fair hearing and notice of that
hearing.”); Barraza Rivera v. INS, 

 (9th
Cir. 1990) (“The Fifth Amendment guarantees due process
in deportation proceedings.”); Campos-Sanchez v. INS, 

 (9th Cir. 1999) (accord).
    “‘The fundamental requisite of due process of law is the
opportunity to be heard.’” Mullane, 

 (quoting
Grannis v. Ordean, 

 (1914)). “The notice
must be of such nature as reasonably to convey the required
information and it must afford a reasonable time for those
34                  USA V. RIVERA-VALDES


interested to make their appearance.” 

 (internal citation
omitted). Contrary to the majority’s contention, personal
service of the OSC on Rivera-Valdes did not satisfy due
process because the OSC did not contain the specific date,
time, or location of the removal hearing, which had yet to be
calendared. The government concedes that the only
document containing the specific date, time, and location of
the removal hearing was the notice of hearing sent by
certified mail, and that notice was returned to the agency as
“unclaimed.” The government also concedes that the agency
took no other steps to notify Rivera-Valdes of his scheduled
removal hearing. The due process analysis must therefore
focus on whether any reasonable alternatives were in fact
available to the government to effect notice.
    The majority errs by relying on pre-Jones caselaw to
resolve this appeal. These cases did not address the specific
question at hand—“whether due process entails further
responsibility when the government becomes aware prior to
[the government action] that its attempt at notice has failed.”
Jones, 

. In Farhoud, the notice of hearing
was sent by certified mail to the petitioner, who conceded he
was living at that address on that date. 

. We
held that due process does not require the government to
provide actual notice of the hearing; rather, “due process is
satisfied if service is conducted in a manner ‘reasonably
calculated’ to ensure that notice reaches the alien.” 

    Farhoud did not involve a claim that the government was
aware its notice had not reached the intended recipient and it
failed to take additional steps to effect notice. 

 Nor does
any other case cited by the majority. See Dobrota, 311 F.3d
at 1211–12; Urbina-Osejo, 

; Hinojosa-
Perez, 

; Popa v. Holder, 

(9th Cir. 2009), abrogation recognized by Lopez v. Barr, 925
                        USA V. RIVERA-VALDES                           

 (9th Cir. 2019).3 Indeed, we have suggested in
other immigration cases that, under Jones, government
knowledge of failed notice is a circumstance the government
must consider when determining the reasonableness of its
chosen method of notice. See Chaidez v. Gonzales, 

, 1086 n.8, 1086–87 (9th Cir. 2007) (citing Jones but
declining to reach constitutional question where statutory
notice was defective); Al Mutarreb v. Holder, 

, 1027–28 (9th Cir. 2009) (citing Jones but avoiding
constitutional question after finding removal order invalid
for other reasons); see also Rendon v. Holder, 

, 219–20 (9th Cir. 2010) (unpublished) (applying Jones
to uphold additional steps taken by INS to effect notice). We
recognized in these cases that whether notice of a
deportation proceeding by certified mail comports with due
process is a question governed by Jones. The notion that
Jones’s due process framework has no bearing on
immigration proceedings is misguided.
    In any event, even if our cases have held that notice of
hearing sent by regular mail to an alien’s last provided
address is “constitutionally adequate,” Urbina-Osejo, 

, Jones requires a different due process analysis
when the government learns its attempt at notice has failed.
Jones, 

. We are bound by this
intervening Supreme Court authority. See Miller, 

.


3
  My colleagues cite two cases decided after Jones, but neither involved
the government becoming aware that its attempt at notice had failed, and
thus neither cites nor discusses Jones in its analysis. See Popa, 

; Poursina v. USCIS, 

, 876 (9th Cir. 2019). “[C]ases
are ‘not precedential for propositions not considered.’” United States v.
Kirilyuk, 

 (9th Cir. 2022) (internal citation omitted).
36                 USA V. RIVERA-VALDES


    The majority concludes that because the agency satisfied
statutory notice provisions, it necessarily satisfied due
process requirements as well. But Jones rejected this
argument, making clear that “the government [must]
consider unique information about an intended recipient
regardless of whether a statutory scheme is reasonably
calculated to provide notice in the ordinary case.” Jones,

. Although the Commissioner complied with
state law when he sent notice of tax delinquency by certified
mail, 

 at 224–25, this did not insulate the Commissioner
against claims his notice was constitutionally defective. 

at 231–32. See also Yi Tu, 470 F.3d at 945–46 (rejecting
agency claim that because it was statutorily authorized to
give notice by certified mail, its notice of pilot license
suspension proceedings sent by certified mail was
constitutionally adequate) (citing Jones, 

).
    Finally, the majority purports to apply a due process
balancing test to justify ignoring Jones’s “government
knowledge” analysis. According to the majority, the
statutory regime in place at the time of Rivera-Valdes’s 1994
deportation hearing was “reasonably calculated to ensure
that Rivera-Valdes received notice” because it required
aliens to update their addresses with the agency. Thus, the
majority concludes, “by failing to comply with his statutory
obligations, Rivera-Valdes ‘relieve[d] the government of its
responsibility to provide’ him with any more notice of the
hearing.” 

 (quoting Popa, 

).
    The majority’s position suffers from two key flaws.
First, the interest-balancing called for in Mullane and Jones
is the very analysis the majority seeks to avoid here. To
balance the interests of the government and individual, due
process requires that the government provide “notice
reasonably calculated, under all the circumstances, to
                    USA V. RIVERA-VALDES                    37


apprise interested parties of the pendency of the action and
afform them an opportunity to present their objections.”
Mullane, 

. Notice is generally sufficient “if
it was reasonably calculated to reach the intended recipient
when sent” and the government “heard nothing back
indicating that anything had gone awry.” Jones, 

. But the balance of interests changes when the
government becomes aware that its efforts to provide notice
have proven ineffective. As Jones explained, “[d]eciding to
take no further action is not what someone ‘desirous of
actually informing’ [the interested party] would do; such a
person would take further reasonable steps if any were
available.” 

. The analysis in Jones cannot be
divorced from Mullane, for it addresses what process is due
when the government discovers that notice pursuant to its
normal procedures has failed and the interested party has not
been apprised of the hearing.
     Second, Jones rejected the majority’s view that by
failing to comply with a legal requirement to register and
keep an address updated, the interested party loses the right
to reasonable follow-up measures. See 547 U.S. at 231–32
(“Jones’ failure to comply with a statutory obligation to keep
his address updated [did not] forfeit[] his right to
constitutionally sufficient notice,” because “[a] party’s
ability to take steps to safeguard its own interests does not
relieve the State of its constitutional obligation.”) (citation
omitted). Whether in Jones or here, a person who fails to
meet their statutory obligation to update their address, or to
pay their property taxes, does not forfeit their due process
38                      USA V. RIVERA-VALDES


right to “adequate notice of the impending [government
action].” 

.4
                                   IV.
    Judge Bumatay writes separately to convey his concern
that I would break new constitutional ground to resolve this
case. Not so. As I have explained, existing precedent
already confirms two points: first, immigrants subject to
removal are entitled to due process protections under the
Fifth Amendment; and second, we and other circuits have
already applied Jones in a variety of government
proceedings affecting real and personal property, licensing,
privacy, and other protected legal interests. I break no new
ground by applying foundational due process principles
from Mullane and Jones to another type of government
proceeding. It is the majority who departs from our
precedent by failing to apply this due process framework in
the context of an immigration case. See Williams, 

.
   Judge Bumatay’s concurrence expresses a novel and
overly restrictive view of due process that has yet to gain
purchase in our circuit. My colleague cites to his own

4
  The majority contends that it would be futile to remand to the district
court. But remand was the appropriate remedy in Jones for determining
whether additional reasonable steps were available to the State to effect
notice. See 547 U.S. at 234–36. And in Echavarria, the Fifth Circuit
left it to the district court to determine that “additional reasonable steps
were in fact available, and were not used,” by DHS to notify bond
obligors about the breach of an immigration bond after notice was
returned as undeliverable. 641 F.3d at 95–96 (applying Jones in
immigration bond context). Because the existing record does not
disclose what steps were available to the government here, the district
court would be best positioned to determine that question in the first
instance.
                    USA V. RIVERA-VALDES                    39


concurrence in Rodriguez Diaz v. Garland, 

(9th Cir. 2022) (Bumatay, J., concurring), for the proposition
that removal proceedings are a “unique enclave” when it
comes to due process. 

. But he does not explain
what makes removal proceedings different from or less
deserving of the “elementary and fundamental” requisites of
due process in any government proceeding—notice and an
opportunity to be heard. Mullane, 

. And the
stakes to an individual subject to removal are no less severe
than other government proceedings. See Niz-Chavez v.
Garland, 

, 163–64 (2021) (“A notice to appear
serves as the basis for commencing a grave legal
proceeding,” “it is ‘like an indictment in a criminal case [or]
a complaint in a civil case.’” (brackets in original)).
     Judge Bumatay’s reliance on Trump v. Hawaii, 

 (2018), does little to support his position. There, the
Supreme Court discussed “certain aliens abroad”—that is,
noncitizens outside the United States. 

. The Due
Process Clause applies to “persons,” regardless of
citizenship.    See U.S. Const. amends V & XIV.
Accordingly, this court has consistently held that the
Constitution entitles a noncitizen facing removal within the
United States to a “full and fair hearing and notice of that
hearing.” Dobrota, 

; see Ibarra-Flores v.
Gonzales, 

 (9th Cir. 2006); Barraza
Rivera, 

; Campos-Sanchez, 

.
Judge Bumatay’s contention that due process protections
should apply with less force to individuals suspected of
being in the country unlawfully is squarely at odds with our
precedent.
40                    USA V. RIVERA-VALDES


    My colleagues’ concern about the effect Jones would
have on immigration proceedings is wildly overstated.5
Jones simply prompts further inquiry into whether the
government could have taken additional reasonable steps to
effect notice when it becomes aware its method of providing
notice was unsuccessful. Because this analysis was never
undertaken by the district court, we do not know what
evidence the government could or would present. To put
things in perspective, Jones has been the law of the land
since 2006, governing the constitutional adequacy of notice
afforded to interested parties in countless federal, state, and
local government proceedings. Millions of notices of
government action have likely been delivered by
governments in that time, and yet courts have not ground to
a halt and government agencies have found ways to take
additional steps to effect notice when it is practicable to do
so.
    More importantly, the protections enshrined in the Due
Process Clause should not be given short shrift simply
because of a person’s immigration status. I can imagine few
interests more important than avoiding persecution or
torture—claims regularly raised in removal proceedings.
Given the stakes involved, the constitutional protections
described in Mullane and Jones—as well as the flexibility in
their application—should find a natural home in
immigration proceedings.


5
 Judge Baker raises the specter that some large portion of the 1.376
million in absentia orders issued since 1996 could be called into
question, but nowhere in Judge Baker’s addendum does it disclose the
number of in absentia hearings that involved the return of unclaimed
notices of hearing or otherwise reflected government knowledge that
notice was ineffective.