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Appeals Board Rules That Service Of Notice On 7-year Child Fails To Meet Legal Standard

by Cyrus D. Mehta

In a recent decision of the Board of Immigration Appeals (Board), Rosa Mejia-Andino, 23 I&N Dec. 533 (BIA 2002), the Board found that removal proceedings against a 7-year old were properly terminated because the Notice to Appear failed to meet the regulatory requirement for notifying minors about removal proceedings.[1]

In Rosa Mejia-Andino, the notice indicated that the 7-year old child “admitted to illegally entering the United States by wading the Rio Grande River at a point not designed as a port of entry at or near Los Indios, Texas, on or about August 23, 1999” that she “claimed to have left Honduras on or about August 1, 1999, and traveled by a combination of foot and bus until reaching the Rio Grande River near Matamoros, Tamaulipas” and that she “stated that she was en route to Detroit, Michigan to reside with her family.” The notice also indicated that the child was apprehended with a group of four other undocumented aliens of Honduran citizenship, among whom were her brother, her sister, and an uncle.

The Border Patrol Agent personally served the notice on the person identified in the notice as the child’s uncle. Despite the service of the notice to the alleged “uncle,” the child failed to appear for two hearings. Although the INS prosecuting attorney requested the Immigration Judge to remove the child in absentia, the Immigration Judge chose instead to terminate proceedings on the ground that it would violate the child’s due process rights to penalize her for failing to appear. The Immigration Judge also found that more should be required in the case of a 7-year old child than just a conclusory statement as to the relationship of an adult to the child. The Judge also expressed concern that adults entering this country are motivated to make a false claim regarding a familial relationship to an accompanying child, because they may believe that such a relationship makes it less likely that they will be detained by the INS.

The INS appealed to the Board of Immigration Appeals arguing that the Immigration Judge should have ordered the child removed in absentia rather than terminate the hearing. The majority of the Board affirmed the Immigration Judge’s ruling to terminate the hearing. In analyzing the regulation, 8 CFR § 103.5(a)(2)(ii), the Board ruled that it required the INS to have served the child’s parents in addition to the uncle. The notice did indeed indicate that the child was traveling to Detroit to reside with her family, listed the names of her parents, and gave a Detroit, Michigan, address.

The Board further cited a case involving Elain Gonzalez, where the INS argued and the court agreed that a 6-year old child would “lack the capacity to sign and to submit personally an application for asylum” and, instead, “must be represented by an adult in immigration matters.” Gonzalez v. Reno, 212 F.3d 1338, 1349-50 (11th Cir.), cert. Denied, 530 U.S. 1270 (2000). In that case, the INS also emphasized that the only proper adult to represent a 6-year old child was the child’s parent. Id. At 1351.

Although the regulation does not explicitly require the notice to be served on the parents, the Board interpreted the rule expansively holding that service on the parents is required, whenever possible in addition to service that may be made on an accompanying adult or more distant relative.

In a concurring opinion, another group of Board members opined that the allegations contained in the deportation notice, based solely on a 7-year old child’s testimony, were insufficient in the absence of a determination that a child was able to understand and relate that information, free from undue influence. According to the concurring opinion, the notice itself was defective rather than the service of the notice to one who was not the child’s parent.

The Board’s ruling in Rosa Mejia-Andino is indeed a welcome development. Outside the immigration law arena, personal service of a court hearing is almost always a mandatory requirement. Under § 239(C) of the Immigration and Nationality Act, there is no requirement that the notice to appear for a removal hearing be served personally or by certified mail. Service by regular mail is also sufficient. As a result, many noncitizens may not have received a notice to appear for removal hearings if the INS did not have their current address on file. If they did not appear for the hearing, they would not have been as lucky as the child in the instant case and would have been ordered removed in absentia. In a post-9/11 world, people with removal orders are likely to be detected and apprehended more often than before.

In 2001, the Board also ruled favorably for an adult noncitizen who had been removed in absentia for failure to appear at a hearing. In Matter of G-Y-R, 23 I&N Dec. 181(BIA 2001), the Board ruled that a respondent cannot be ordered removed or deported in absentia until he or she is warned, via a removal or deportation notice, of the consequences of failing to inform the INS of a change of address. Thus, individuals who failed to report a change of address and did not receive the initial notice cannot be removed or deported in absentia.

Since removal from the United States is a drastic consequence and often leads to permanent banishment, it is important for the Board and federal courts to hold the INS to a high standard so as to ensure that the noncitizen, whether adult or child, received proper notice of a removal hearing.

[1] 8 CFR § 103.5a(2)(ii) states: “(ii) Incompetents and minors. In case of mental incompetency, whether or not confined in an institution, and in the case of a minor under 14 years of age, service shall be made upon the person with whom the incompetent or the minor resides; whenever possible, service shall also be made on the near relative, guardian, committee, or friend.”

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.