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BIA Finds Service Of OSC On Two-Year-Old Defective For Failure To Serve The Child’s Mother

by Andrew Knapp, Esq.

On August 22, 2005, in an unpublished decision, a three member panel of the Board of Immigration Appeals (Holmes, Hurwitz, MILLER) reopened the deportation proceedings of a 12 year old Salvadoran girl, Estefany Patricia Romero Sigaran, to allow her to pursue her application for lawful permanent residence under section 203 of the Nicaraguan Adjustment and Central American Relief Act of 1997 (Pub. L. 105-100; 111 Stat. 2160, 2193) (NACARA).

Over ten years earlier, on May 7, 1995, when Estefany was only two years old, the Immigration and Naturalization Service (INS) apprehended Estefany for entering the United States illegally, together with Estefany's grandmother and her brother and sister. The INS then located Estefany's mother living in the United States and released Estefany and her grandmother and her siblings to the custody of Estefany's mother. However, the INS did not provide Estefany's mother with a copy of Estefany's Order to Show Cause (OSC), because the INS officer who served this document misidentified Estefany's grandmother as Estefany's mother on the proof of service section of the document and accordingly served the document on Estefany's grandmother instead of on Estefany's mother. Subsequently, the INS sent notice of Estefany's August 29, 1995 deportation hearing to the address where Estefany and her family members went to live with Estefany's mother, and Estefany's mother signed the certified mail return receipt acknowledge receipt of Estefany's hearing notice. However, when Estefany failed to appear for her scheduled deportation hearing, Los Angeles Immigration Judge Thomas Y.K. Fong ordered Estefany deported in absentia.

At the time of Estefany's apprehension by the INS, 8 C.F.R. § 242.24(b)(1) (now codified as 8 C.F.R. § 236.3(b)(1)), required that juveniles who are released on recognizance "shall be released pursuant to the following guidelines: (1) Juveniles shall be released, in order of preference, to: (i) A parent; (ii) legal guardian; or (iii) adult relative (brother, sister, aunt, uncle, grandparent) who are not presently in INS detention". While 8 C.F.R. § 242.24(b)(2) (now codified as 8 C.F.R. §236.3(b)(2)) did permit for the "simultaneous release of the juvenile and the parent, legal guardian, or adult relative", this action was limited to situations where "an individual listed in paragraph (b)(1) of this section cannot be located to accept custody of the juvenile".

Much later on March 25, 2004, the Ninth Circuit Court of Appeals in Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), interpreted this regulation as requiring service of the Order to Show Cause upon the adult to whom a juvenile under the age of 18 is released from INS detention. Although a separate regulation, 8 C.F.R. § 103.5a(c)(2)(ii), allowed for service of the Order to Show Cause "in the case of a minor under 14 years of age... upon the person with whom the... minor resides", the Ninth Circuit Court of Appeals held that "notice to an alien juvenile in custody but not to the responsible adult into whose care he is released could raise serious constitutional due process questions...we must construe the juvenile release and notice regulations 'if fairly possible, so as to avoid not only the conclusion that [they are] unconstitutional but also grave doubts upon that score'." Flores-Chavez, 362 F.3d at 1162 (internal citations omitted).

Then, on July 23, 2004, Estefany moved the Immigration Judge to rescind her in absentia deportation order on the basis that service of the Order to Show Cause upon her grandmother, rather than upon her mother to whom she was released from INS detention, violated 8 C.F.R. § 242.24(b)(1), as interpreted by the Flores-Chavez decision. However, on October 4, 2004, Immigration Judge Fong denied Estefany's motion, finding that Estefany had been properly served pursuant to 8 C.F.R. § 103.5a(c)(2)(ii), because the Order to Show Cause had been served on Estefany's grandmother, and the Notice of Hearing had been served on Estefany's mother, both of whom resided with Estefany at the time of service.

Estefany immediately appealed Judge Fong's decision to the Board of Immigration Appeals, arguing that the Ninth Circuit's Flores-Chavez decision mandated recission of Estefany's in absentia deportation order because the facts of Estefany's case were very similar to the facts in Flores-Chavez. Both Jose Flores-Chavez and Estefany were detained for illegally entering the United States from El Salvador when they were under the age of 18, both were apprehended together with the adult relatives with whom they had entered the U.S. illegally, both were issued Orders to Show Cause, and both were released to non-detained adult relatives who were not served copies of these Orders to Show Cause. See Flores-Chavez, 362 F.3d at 1153. However, an important difference distinguishing the two cases was the fact that Jose Flores-Chavez's Notice of Hearing was issued at the same time as his Order to Show Cause, whereas Estefany's Notice of Hearing was separately mailed to her and was actually received by Estefany's mother to whom Estefany was released from INS detention. As a result, since Estefany's mother received actual notice of Estefany's deportation hearing, but then failed to present her daughter for her scheduled deportation hearing, the same due process concerns in the Flores-Chavez case concerning parental notification were not necessarily present in Estefany's case. For this reason, on April 27, 2005, the Board of Immigration Appeals initially denied Estefany's appeal, finding that service of her OSC and her Notice of Hearing "was sufficient under the regulations in effect at the time".

Then, on May 16, 2005, Estefany filed a Motion to Reconsider with the Board advocating for an expansive reading of the Ninth Circuit's Flores-Chavez decision. Specifically, Estefany argued that, pursuant to the rationale of the Supreme Court's decision in Clark v. Suarez Martinez, 125 S.Ct. 716, 724 (U.S. Jan 12, 2005), the deportation notice statute at 8 U.S.C. § 1252b(a)(1), and its implementing regulations at 8 C.F.R. §236.3(b), as interpreted by the Flores-Chavez decision, must be applied as a per se rule in every case to require service of the Order to Show Cause upon the adult to whom a minor is released from detention, regardless of the due process concerns which may or may not be present in any specific case. In Clark v. Suarez Martinez, 125 S.Ct. 716, 724 (U.S. Jan 12, 2005), the Supreme Court specifically held that "[i]t is not at all unusual to give a statute's ambiguous language a limiting construction called for by one of the statute's applications, even though other of the statute's applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern... In other words, when deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail--whether or not those constitutional problems pertain to the particular litigant before the Court."

Estefany's brief to the Board extensively detailed the history and development of the jurisprudence of the United States Supreme Court and the U.S. Circuit Courts of Appeals on the constitutional rights of minors in administrative proceedings effecting their liberty interests to parental notification of the charges against them and to notice of their rights and responsibilities. Estefany argued that, following this jurisprudence, grave constitutional concerns would be implicated if the Board failed to extend the holding of the Flores-Chavez decision to cases such as Estefany's where the adult relative to whom the juvenile was released from INS detention received notice of the juvenile's scheduled deportation hearing but did not also receive service of the juvenile's Order to Show Cause containing the juvenile's rights and responsibilities. See Flores-Chavez, 362 F.3d at 1163 ("when the INS releases a minor alien to an adult's custody pursuant to 8 C.F.R. § 242.24, thereby making that adult responsible for the minor's future appearance at immigration proceedings, the agency must serve notice of the minor's rights and responsibilities upon that adult if the minor is under eighteen").

Estefany's task was no easy one because of the limited jurisdiction of the Board of Immigration Appeals to consider constitutional challenges to the validity of immigration regulations. However, while the Board cannot rule on the substantive validity of statutes or regulations, it can decide cases on procedural due process grounds, and can rule on whether challenged procedures do or do not violate fundamental fairness principles. The Board can also interpret a regulation to add additional requirements which are not expressly mandated by the language of the regulation. For example, 8 C.F.R. §§ 242.24(b)(3) and (b)(4) limit the authority of the INS to release a juvenile to an adult other than a parent, guardian or designated relative unless the adult "execute[s] an agreement" that requires the adult both "to care for the juvenile" and "to ensure the juvenile's presence at all future proceedings before the Service or an immigration judge", whereas 8 C.F.R. § 242.24(b)(1), which allows release to a parent, legal guardian, or adult relative, contains no such limitation. Nevertheless, the Board of Immigration Appeals has interpreted this regulation to find that the obligation to ensure the juvenile's appearance applies equally to parents and relatives who are not required to execute a formal agreement. See Matter of Gomez-Gomez, 23 I. & N. 522, 528 n.7 (BIA 2002).

Estefany thus argued persuasively to the Board that if an otherwise acceptable construction of the deportation notice statute and implementing regulations would raise serious constitutional problems, and another alternative interpretation is fairly possible, then the Board is obligated to construe such statute and regulations to avoid such problems under the cannon of constitutional avoidance. This cannon "allows courts to avoid the decision of constitutional questions. It is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts." Clark v. Suarez Martinez, 125 S.Ct. at 724-725.

Estefany's arguments ultimately prevailed when the Board of Immigration Appeals, on August 22, 2005, ordered her deportation proceedings reopened. The Board specifically held that recision of Estefany's in absentia deportation order was appropriate because "given the panoply of warnings contained in the OSC which are not contained in the notice of hearing... we are persuaded upon reconsideration that respondent's mother was not properly served with notice of the minor respondent's full rights and responsibilities in deportation proceedings. See Flores-Chavez v. Ashcroft". The full text of the Board's decision can be found at:

About The Author

Andrew Knapp graduated from Western State University College of Law with honors in 1995. He worked for the INS Los Angeles Asylum Office as an asylum officer before going into private practice. He has been practicing Immigration Law exclusively since 1996. He joined Cifuentes Knapp & Associates in July of 2000. Andrew has three published Ninth Circuit Court of Appeals cases: Guadalupe-Cruz v. INS, 250 F.3d 1271 (9th Cir. 2001), Reyes-Melendez v. INS, 342 F.3d 1001, 1004 (9th Cir. 2003), and Recinos de Leon v. Gonzales, No. 02-73352, 2005 U.S. App. LEXIS 4110 (9th Cir. Mar. 11, 2005). He takes particular interest in litigating motions to reopen before the Immigration Courts and the Board of Immigration Appeals and has been successful in reopening proceedings for numerous applicants for adjustment of status and NACARA § 203 relief.

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

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