Mail and the Hague Service Convention… a match made in confusion.

Mail and the Hague Service Convention… a match made in confusion.

Here’s an easy question:  can you serve by mail in (pick a country)?  I’ve fielded this one a hundred times.  The attorney asking has usually already decided that’s what he’s going to do and is just making sure.

Unfortunately, it’s not as easy as it seems.  With apologies to all of those who suffered through the crucible of law school and must now live its clichés, it depends.

Generally speaking, yes, you can serve by mail in much of the world, but there are exceptions, both here and abroad.  And that doesn’t mean you should serve by mail.  It’s a bad idea, for more reasons than I have space here to discuss.

Article 10(a) of the Hague Service Convention seems pretty clear.  Sending a summons & complaint by mail (and by reasonable extension, FedEx) is acceptable under the Convention, provided the country you’re sending to doesn’t object.  That means a clear “no” in:  Germany, China, India, Mexico, Switzerland, Russia, Korea…

The answer in Japan is “probably not” (long story).

Where the destination state doesn’t object (think England, France, Canada, and others), it’s still not a great idea.  You may be on a solid legal footing, but the factual ice your other foot rests on is awfully thin.  Put another way,  good luck proving it, pal.

But the destination country isn’t the only critical element of the analysis.  You must first determine whether mail service is valid in the forum hearing the case.

Local rules don’t allow it?  Sorry, 10(a) is not going to fly, regardless of the destination country’s views.

Federal rules do allow it, but be wary.  Overseas mail service originates with the Clerk of Court, rather than the attorney’s office.

Moreover, two circuits and numerous federal districts have held that a drafting error in Article 10(a) is fatal to its validity.  The 5th and 8th Circuits keyed on the drafters’ use of the word “send” rather than “serve”.  But rejoice, 2nd and 9th!  Your appeals courts think Five and Eight goofed.

I happen to agree with Two and Nine, but I honestly think Five and Eight will overturn themselves when the right case comes along.  (Hint:  if you have a test case in either Circuit, let me take a crack at it.)

Truly, the legal validity of Hague mail service doesn’t matter.  It’s usually a waste of energy to try it in the first place because you often can’t demonstrate conclusively that the right person at the defendant’s home (or defendant entity’s office) actually received the documents.

Far better to ensure that service is effected in a manner that leaves no question of fact.*  Article 5 is awfully handy for that, as is Article 10(b)/10(c) where available.


*A note about mail service’s use by foreign Central Authorities under Article 5: if the foreign authority says it’s valid, it’s valid.  Period.  The U.S. court can’t dissect the foreign government’s reasoning on the matter, and should defer.  Earlier post on serving U.S. servicemembers abroad touch on that issue  here and here.  Bottom line: a foreign authority’s use of mail validates it under Article 5.  As such, Article 10(a) analysis is inapplicable, and the Supremacy Clause makes the treaty override local rules.

Image credit:  Chris Downer, via Wikimedia Commons.  The oldest letter box in England.  Note the “V R”, indicating Queen Victoria, who died when William McKinley was President.  (William McKinley also died when William McKinley was President.)

Serving Absent Parents Outside the United States

Serving Absent Parents Outside the United States

Immigration attorneys seeking Special Immigrant Juvenile (SIJ) status for their clients must seek an order of guardianship in state court before an Immigration Court will confer SIJ classification.   In order to establish that guardianship, they (or co-counsel who practices family law) must put the child’s biological parent(s) on notice of the proceedings—and that implicates a host of procedural barriers.

In many states, parental rights are constitutional in nature—the best interests of the child take a back seat— and that doctrine isn’t going away.  Even where the best interests of the child are paramount, notice must still be served in order to vindicate an absent parent’s constitutional rights.

The constitutional standard applicable to the manner of service of process comes from Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950): notice by a “means reasonably calculated… to apprise” the defendant (respondent) of the action and to give him/her an opportunity to oppose it.

Where that defendant is outside the United States, the law of the foreign jurisdiction must also be respected.  In many countries, even in Latin America, that may implicate the Hague Service Convention—which is mandatory doctrine under Volkswagenwerk AG v. Schlunk, 486 U.S. 694, 699 (1988).

Application of the treaty complicates matters in serving guardianship notices, but even where it is not applicable, service may be impossible.  That does not, however, allow a court to simply deem a respondent served.  It also does not mean that mail or a fax or email or Facebook Messenger are appropriate.

Mexico is signatory to the HSC, and it has declared its opposition to all of the alternative methods of service listed in Article 10.  This leaves but one legally appropriate method of service: a formal request to the Ministry of Foreign Affairs in Mexico City.  This process takes several months—in many cases up to a year (no, that is not a typo).

In other Latin American countries, most notably Guatemala, Honduras, and El Salvador, service is all but impossible without extraordinary cost and risk.  But, again, that does not relieve counsel of the duty to take reasonable steps to serve.

And therein lies the key idea: reasonable steps.  [Shameless plug:  Not only does Viking Advocates provide assistance in serving process, we also help counsel to demonstrate why traditional attempts to serve would be unreasonable—due to cost, lack of information, or extreme risk.]

Once we have accomplished a few steps, alternatives can be suggested to the court hearing the guardianship request:

  • A diligent attempt to ascertain the respondent’s location. If he’s in a village in the mountains with no address, we simply cannot reach him by traditional means.
  • If you have an address, try to serve. This is especially true in Mexico, where service is frequently effected, but usually after a lengthy wait.
  • If no address is available, there are other options, but every case is—like every jurisdiction—different.

In all cases, honest attempts at service must be initiated, lest the entire quest for SIJ status unravel.  Above all else… do it the right way.


[In a later post… we will discuss the Hague Adoption Convention, the State Department’s erroneous interpretation of it, and the way in which SIJ status overcomes the error.]