CUBOR, 25 I&N Dec. 470 (BIA 2011)

Cite as 25 I&N Dec. 470 (BIA 2011) Interim Decision #3710
Matter of Hilmer Leonel CUBOR-Cruz, Respondent
Decided April 29, 2011
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Personal service of a Notice to Appear (Form I-862) on a minor who is 14 years of age
or older at the time of service is effective, and the regulations do not require that notice also
be served on an adult with responsibility for the minor.
FOR RESPONDENT: Rashmi N. Patel, Esquire, Stamford, Connecticut
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
GRANT, Board Member:
In a decision dated January 24, 2006, an Immigration Judge issued
an in absentia order of removal against the respondent. On August 31, 2010,
the respondent filed a motion to reopen the proceedings, requesting rescission
of the removal order for lack of proper notice. The Immigration Judge
denied the respondent’s motion in a decision dated September 21, 2010. The
respondent has appealed from that decision. The appeal will be dismissed.
The respondent is a 23-year-old native and citizen of Guatemala who left
that country with his step-father and entered the United States on June 23,
2005, without being admitted or paroled. He was born on April 1, 1988, and
was 17 years old at the time of entry.
The respondent concedes on appeal that he was served in person with
a Notice to Appear (Form I-862) dated June 27, 2005, and that he failed
to appear for his scheduled hearing before the Immigration Judge. However,
he argues that he did not receive proper notice of the hearing and that his
in absentia proceedings should therefore be reopened and the removal order
rescinded. Specifically, he asserts that even though he was served in person,
the service was not proper because the notice of the hearing should also have
been given to his step-father or a legal guardian since he was only 17 years old
at the time.Cite as 25 I&N Dec. 470 (BIA 2011) Interim Decision #3710
1 No contention has been raised in this case that the circumstances of the respondent’s
release did not conform to the regulations.
A removal order entered against an alien in absentia may be rescinded at
any time if the alien files a motion to reopen and demonstrates that he or she
did not receive notice of the hearing. 8 C.F.R. § 1003.23(b)(4)(ii) (2010).
Section 239(a)(1) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229(a)(1) (2006), provides that the Notice to Appear is properly served if
it is “given in person to the alien (or if personal service is not practicable,
through service by mail to the alien or to the alien’s counsel of record, if any).”
See also 8 C.F.R. § 103.5a(c)(1) (2010) (providing for personal service of
notice). However, the regulations state that if the alien is a minor under
14 years of age, “service shall be made upon the person with whom the . . .
minor resides; whenever possible, service shall also be made on the near
relative, guardian, committee, or friend.” 8 C.F.R. § 103.5a(c)(2)(ii); see also
8 C.F.R. § 236.2(a) (2010).
The respondent argues that this definition of a “minor” conflicts with the
definition of a “juvenile” as a person “under the age of 18 years” in 8 C.F.R.
§§ 236.3(a) and 1236.3(a) (2010), which describe procedures for detention and
release of juvenile aliens. He relies on a decision by the United States Court
of Appeals for the Ninth Circuit finding that the differing definitions
of a “minor” and a “juvenile” in this context were illogical and could raise
serious due process concerns. Flores-Chavez v. Ashcroft, 362 F.3d 1150,
1157-62 (9th Cir. 2004).
In that case, the Ninth Circuit ruled that if an alien under the age
of 18 is released into the custody of an adult, the Notice to Appear should
be served on the adult as well as the alien, because it “would be inconsistent
for the regulations to require that minors older than fourteen be released
to a competent adult who takes responsibility for the minor but to not require
that the adult be served with notice.” Id. at 1163. Thus, the respondent asserts
that to reconcile these regulations, they should be interpreted to require that
when an alien under the age of 18 is served with a Notice to Appear, a copy
must also be given to an adult.1
The regulations promulgated by the Attorney General have the force and
effect of law. Section 103(a) of the Act, 8 U.S.C. § 1103(a) (2006); Matter
of Anselmo, 20 I&N Dec. 25, 30 (BIA 1989); 8 C.F.R. §§ 1003.1(d)(1)(i),
1003.10(b) (2010). We construe the language of the regulations following the
same principles of interpretation that we apply to statutory provisions. See
Matter of Villarreal-Zuniga, 23 I&N Dec. 886, 889 (BIA 2006). “Regulations,
like statutes, must be interpreted to give effect to the entire regulatoryCite as 25 I&N Dec. 470 (BIA 2011) Interim Decision #3710
2 In deciding this issue, the courts addressed the service of notice provisions in 8 C.F.R.
§ 103.5a(c) and the release provisions that are currently in 8 C.F.R. §§ 236.3 and 1236.3, but
which were previously codified at 8 C.F.R. § 242.24. See Inspection and Expedited
Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings;
Asylum Procedures, 62 Fed. Reg. 10,312, 10,362 (Mar. 6, 1997).
scheme.” Matter of C-W-L-, 24 I&N Dec. 346, 348 (BIA 2007). However,
the regulation that specifically addresses the issue at hand is controlling.
See Matter of Ponce De Leon, 21 I&N Dec. 154, 158 (BIA 1996, 1997;
A.G. 1997). We conclude that the regulation at 8 C.F.R. § 103.5a(c)(2)(ii)
governs the service of notice on minors and that it only requires notice
to be served on an adult when the minor is under 14 years of age.
Both the Fifth and the Eighth Circuits have decided that the regulatory
provisions in question have different purposes and are not in conflict.2
Fifth Circuit noted that the release provision does not cross-reference
or address the service of notice provision and stated that “it would
be a strained analysis indeed that would resolve this issue by deciding not only
that the provisions were inconsistent but that the more general release
provision somehow negated the specific service provision despite making
no reference to notification at all.” Lopez-Dubon v. Holder, 609 F.3d 642, 646
(5th Cir. 2010), cert. denied, 79 U.S.L.W. 3329, 2011 WL 1529750 (U.S.
Apr. 25, 2011) (No. 10-658). The court therefore affirmed our holding that
notice must be served on an adult only for aliens under 14 years of age. Id.
(citing Matter of Ponce-Hernandez, 22 I&N Dec. 784, 785 (BIA 1999)).
In Llapa-Sinchi v. Mukasey, 520 F.3d 897, 899 (8th Cir. 2008), the Eighth
Circuit also deferred to our “reasonable interpretation” of the regulations
in upholding our conclusion that notice was properly served on a 14-year-old
alien pursuant to 8 C.F.R. § 103.5a(c)(2)(ii). The court identified a number
of situations in which individuals under the age of 18 are responsible for their
legal status and may waive their rights, noting that many State laws allow
personal service of a summons on minors as young as 14 years old. Id. at 900;
see also United States v. Burrous, 147 F.3d 111, 116 (2d Cir. 1998) (ruling
that a 16-year-old defendant was able to waive his Fifth Amendment rights).
Therefore the court found that “minors can be required to navigate through the
justice system and make decisions affecting their rights,” and it declined
to adopt a per se rule that service to minors over the age of 14 alone
is improper. Llapa-Sinchi v. Mukasey, 520 F.3d at 900. Furthermore, noting
that it was not persuaded by the Ninth’s Circuit’s reasoning, the Eighth Circuit
concluded that it did not find the regulations to be inconsistent. Cite as 25 I&N Dec. 470 (BIA 2011) Interim Decision #3710
3 The Second Circuit has previously asked the Board to issue a published decision on this
issue. See Llanos-Fernandez v. Mukasey, 535 F.3d 79, 86 (2d Cir. 2008). However,
subsequent proceedings in that case rendered the issue moot.
We concur with the conclusions of the Fifth and Eighth Circuits.
In particular, we find the following analysis by the Eighth Circuit
to be persuasive:
The purpose of the notice provision is to let individuals know the details of their legal
proceedings. The purpose of the release provision, however, is not to provide
knowledge, but to provide assistance to minors in a foreign land, perhaps for the first
time. It is therefore logical for the regulations to provide that minors entering the
country illegally can be responsible for receiving notice regarding their court
proceedings and yet also provide that minors may need assistance from adults
to obtain basic necessities.
Llapa-Sinchi v. Mukasey, 520 F.3d at 900-01. We therefore conclude that
personal service of a Notice to Appear on a minor who is 14 years of age
or older at the time of service is effective, even though notice was not also
served on an adult with responsibility for the minor.3
While nothing in the
regulations or this decision precludes the Department of Homeland Security,
as a matter of policy or practice, from also serving an adult when a minor
is between the ages of 14 and 18, we agree with the Immigration Judge that
service of the Notice to Appear on the respondent’s step-father or another legal
guardian was not required under the regulations.
The record reflects that the Notice to Appear was served personally on the
respondent. The document bears the respondent’s signature and fingerprint
to acknowledge his receipt. Furthermore, the Immigration Judge noted that the
respondent was given oral notice in Spanish of the time and place of his
hearing and of the consequences of his failure to appear. Personal service
of the Notice to Appear on the respondent and his acknowledgment of its
receipt supports a finding that he was aware that he had been placed
in removal proceedings. See section 239(a)(1) of the Act; see also
Nolasco v. Holder, Nos. 09-5206-ag, 10-2780-ag, 2011 WL 668035 (2d Cir.
Feb. 25, 2011) (stating that due process is generally satisfied where an alien
received notice of the required information in the Notice to Appear and had
a meaningful opportunity to participate in the removal proceedings).
We therefore conclude that the respondent failed to meet his burden
of demonstrating that he did not receive proper notice of the hearing. 8 C.F.R.
§ 1003.23(b)(4)(ii). Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.