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Matter of Gomez-Gomez: The Board’s Second Decision On The Effectiveness Of Service Of Removal Notices On Minors

by Christina B. LaBrie

Shortly following the publication of our previous article analyzing Mejia-Andino, 23 I. &. N. Dec. 533 (BIA 2002), we discovered the Board had decided a second case,Gomez-Gomez, 23 I. &. N. Dec. 522 (BIA 2002), concerning the effectiveness of the service of notice on a minor. Like Mejia-Andino, Gomez-Gomez addresses a situation involving the service of INS notices on a minor child who recently arrived in the United States and was apprehended by the INS while in the company of an adult.

Unlike Mejia-Andino, the Board sustained the INS appeal in Gomez-Gomez and vacated the order of the Immigration Judge terminating proceedings against the minor. Although the two cases presented similar circumstances, certain important factual differences led the Board in Gomez-Gomez to find that the minor had been properly served with the Notice to Appear and subsequent hearing notices. In addition, the Board found that the information contained in the I-213 was reliable, an issue that was not addressed in Mejia-Andino.

I. Facts of the Case

In Gomez-Gomez, a child and an accompanying adult were apprehended by a Border Patrol agent during a “routine bus check” at the Trailways bus station in Brownsville, Texas. The agent took information from the adult, named Carlos, “who represented that he was [the minor’s] father.” Carlos told the agent information about the minor, including her date and place of birth and gave the agent a mailing address in Houston. Carlos said he and the minor were Guatemalan and had entered the United States illegally two days earlier by swimming across the Rio Grande from Mexico. The Border Patrol Agent included only information given by Carlos in the Form I-213.

Carlos was personally served with a Notice to Appear for the minor. Four hearing notices were subsequently mailed to the address on the Form I-213, given to the Border Patrol Agent by Carlos. The minor did not appear at the hearings. The Immigration Judge terminated the proceedings, finding that the service of the notices was inadequate and that the information in the Form I-213 was not reliable and thus not sufficient to establish alienage.

II. The Board’s Decision

A. Service of the Notice to Appear

In contrast to Mejia-Andino, the Board in Gomez-Gomez determined that the service of the Notice to Appear and the subsequent hearing notices were sufficient because they were served on Carlos, the man accompanying the minor who claim to be her father. The two decisions thus clearly indicate that in the case of a minor, service must be made on a parent, if possible, in addition to any adult accompanying the minor. If the accompanying adult is not the minor’s parent, service must be affected on both the accompanying adult and a parent with a known address.

Interestingly, the Board in Gomez-Gomez, mentions that the notices were in fact addressed to the minor and mailed to the address given by Carlos. The Board considers this a “technical violation” that did not prejudice the minor. However, given the Board’s emphasis on service on a parent in Mejia-Andino, it is inconsistent for the Board to consider service on the minor to be sufficient. Although Carlos stated that he and the minor would reside at the same address, it is remarkable that the Board found a letter addressed to an eight-year-old to be sufficient notice.

B. Reliability of the Form I-213

In Gomez-Gomez, the Board was divided about the inherent reliability of information contained in Form I-213. In Mejia-Andino, the majority decision did not reach the issue of the Form I-213 reliability, as the case was decided based on insufficiency of the service of the Notice to Appear. In concurrence, five Board members expressed concern that the information in the I-213 was not reliable and that they would have ruled on that issue as well.

In Gomez-Gomez, the majority pointed out that “this is not a case in which information on a Form I-213 is obtained from a minor.” The Board found a “clear and crucial absence of any factual basis for undermining the trustworthiness of the allegations contained in the Form I-213…” The majority cited Bustis-Torres v. INS, 898 F.2d 1053 (5th Cir. 1990) and applied “the general rule of the reliability of that document.” In applying that rule, the majority noted that the record contained no evidence “proffered by the [minor]” regarding the information in the Form I-213. The Border Patrol Agent took information exclusively from Carlos and the minor did not appear at the hearing; the Board’s decision does not provide guidance as to when such evidence should have been proffered by the minor. The majority also found that the Immigration Judge had no basis in the record to find that false claims to parentage were common and thus conclude that the information given by Carlos was not reliable.

In conclusion, the majority stated, “we find [the Immigration Judge’s] grounds for questioning the accuracy of the information to be insufficient on this record to overcome the well-settled presumption of reliability that the Form I-213 enjoys and that is necessary to the efficient enforcement of the immigration laws at our nation’s borders.” As the majority found the notice to be sufficient, the decision of the Immigration Judge was vacated and the case remanded.

C. The Dissent

The dissent in Gomez-Gomez expressed the opinion previously set forth in the concurrence in Mejia-Andino.1 The dissent listed nine factors that led them to the conclusion that the Form I-213 was not “clear, unequivocal, and convincing” evidence of removability. The dissent also pointed out that under the majority’s analysis, every Form I-213 would constitute conclusive evidence of removability in an in absentia case. If the information is not taken from the minor and the minor does not appear at the hearing, there is no opportunity to confirm the information in the Form I-213. The dissent thus urges an analysis of the “overall circumstances” of the case prior to finding that the Form I-213 is reliable.

The dissenting Board members briefly discussed the sufficiency of the service of notice on the minor, merely stating that “we know very little about Carlos” and that there is no evidence to suggest that the minor had actual notice of her hearing. The dissent concluded that it would have upheld the decision of the Immigration Judge to terminate proceedings against the minor.

The two cases highlight the importance of information found in a Form I-213 and the difficulty presented by very young respondents in removal proceedings. The Form I-213 is significant not only because the Board in Gomez-Gomez relied upon the information contained therein to determine removability, but also because the information formed the basis for determining whether notice was properly served on the minor respondent. The Board was careful to separate the two issues in its decisions, but they are necessarily intertwined. If an individual gives false information to the Border Patrol Agent regarding parentage, the sufficiency of service of a Notice to Appear or hearing notice on that person is thrown into question.

The concurrence in Mejia-Andino suggests that comparison of information given by all individuals accompanying a minor would assist in corroborating the information given by the child. The same approach could have been applied in Gomez-Gomez; the Border Patrol Agent could have included information in the Form I-213 taken from the minor and the accompanying adult. The Immigration Judge would then be in a better position to evaluate the reliability of the information.

Under the Board’s decision in Gomez-Gomez, such additional information is not necessary for the Form I-213 to be considered reliable. Although the Board did not reach the issue of the reliability of the Form I-213 in Mejia-Andino, the decision implicitly accepts the information as true as the finding is based on the existence of the minor’s parents and their residence in Detroit, Michigan. Therefore, although the Board has set forth more stringent standards for service of notices on a minor’s parents, Immigration Judges will not be required to subject the information contained in I-213 forms to extensive scrutiny before ordering minors removed in absentia.

1With the exception of Board Member Grundelsberger, all of the dissenting Board members in Gomez-Gomez concurred in Mejia-Andino.

About The Author

Christina B. LaBrie is an associate attorney at Cyrus D. Mehta & Associates, PLLC. She received her J.D. from the New York University School of Law in 2000. Prior to joining the firm, she practiced immigration law, representing primarily asylum applicants before Immigration Courts, the Board of Immigration Appeals and federal courts.

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