The Ninth Circuit has granted a petition for panel rehearing in B.R. v. Garland, which dealt with proper service of a Notice to Appear on a minor, as well as the proper remedy when DHS obtains juvenile records in violation of state law.
B.R. was deemed an unaccompanied minor and remained in custody until he was eventually released to his mother in March 2011. Upon his release, DHS failed to serve a copy of the NTA on B.R.’s mother. In fact, DHS has never served B.R.’s mother with his NTA. No substantive proceedings took place between 2011 and 2018 (in part, because B.R. was incarcerated for some of that time). In January 2018, B.R. (now represented by an attorney) moved to terminate proceedings on the ground that DHS failed to effectuate proper service in 2011 by failing to serve a copy of his NTA on B.R.’s custodian (his mother) when he was released to her custody, which he argued was required for minor aliens pursuant to Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004). The IJ acknowledged that DHS’s 2011 NTA service was improper under our Flores-Chavez rule, but denied the motion after concluding that DHS was permitted to perfect service by re-serving the NTA on then-adult B.R. The IJ noted DHS had done so by reserving the NTA by mail on B.R.’s counsel as an attachment to the agency’s response to B.R.’s motion.
In March 2018, B.R. filed a motion to suppress evidence and to terminate proceedings, in which he argued that the three I-213s that DHS had assembled and submitted as evidence of B.R.’s alienage improperly relied on B.R.’s confidential juvenile records—an act B.R. argued was a violation of his Fourth and Fifth Amendment rights and an egregious regulatory violation—and that these forms should be suppressed. B.R. argued that without the I-213s, DHS, which at that point had submitted no other evidence of his alienage, failed to meet its burden of establishing that B.R. was born in Mexico. In response to the motion, DHS submitted two additional pieces of evidence of alienage: (1) B.R.’s Mexican birth certificate, and (2) a district court presentence investigation report which stated that B.R. was born in Mexico.
The IJ denied the motion to suppress evidence and to terminate proceedings. The IJ refrained from deciding whether DHS had acted unlawfully with respect to B.R.’s juvenile records in the preparation of the I213s but assumed for purposes of analysis that DHS had indeed obtained information for the I-213s unlawfully. Sidestepping the merits, the IJ held that DHS’s supplemental evidence (the Mexican birth certificate and the district court presentence report) was obtained based on B.R.’s identity alone, which, regardless of any alleged constitutional or regulatory violation, cannot be suppressed. Thus, the IJ found the supplementary evidence not suppressible and determined that DHS had proved B.R.’s Mexican alienage by clear, unequivocal, and convincing evidence, even without the I-213s.
“Reviewing the matter de novo, we hold that improper service of an NTA on a minor alien released from DHS custody can be cured if DHS later perfects service before substantive removal proceedings begin. Therefore, regardless whether DHS’s improper service in 2010 failed to vest the immigration court with jurisdiction initially, the immigration court had jurisdiction throughout all of B.R.’s substantive removal proceedings subsequent to DHS’s perfection of service on B.R. in 2018.” “Nothing in the statute or regulations requires termination of removal proceedings solely because the initial service was found to be defective.” “Flores-Chavez requires DHS to serve the NTA on the custodian of a minor alien after he is released. It does not create a bizarre rule where, if service on the custodian is not made the instant the minor is released, DHS is barred from pursuing removal.” “To cure defective service, DHS re-served the NTA on then-adult B.R., but B.R. here complains that DHS again did not serve notice on B.R.’s mother. We hold that DHS need not have served B.R.’s mother after he turned eighteen and that DHS properly perfected service by mailing the NTA to B.R.’s attorney.”
“In holding that DHS may cure defective service to avoid violating § 1229 and related regulations, we do not suggest that there is no remedy when improper service amounts to an egregious regulatory violation which works to prejudice an alien’s interests. Our test from Sanchez v. Sessions provides adequate remedy of such instances: “[A] petitioner is entitled to termination of their [sic] proceedings without prejudice as long as the following requirements are satisfied: (1) the agency violated a regulation; (2) the regulation was promulgated for the benefit of petitioners; and (3) the violation was egregious, meaning that it involved conscience-shocking conduct, deprived the petitioner of fundamental rights, or prejudiced the petitioner.” 904 F.3d 643, 655 (9th Cir. 2018). B.R. argues that, even if DHS is permitted to cure defective service, its initial failure to serve B.R.’s mother in accordance with Flores-Chavez’s interpretation of 8 C.F.R. § 236.3 and the seven-year gap between its initial failure and its perfection in 2018 were egregious regulatory violations because they prejudiced his interests, requiring termination of his removal proceedings. The agency, however, did not address B.R.’s egregious regulatory violation argument below.” “Because the agency did not address B.R.’s egregious regulatory violation argument, we grant B.R.’s petition and remand to the agency for it to consider that particular argument. We leave the determination of whether DHS did in fact commit an egregious regulatory violation, including whether DHS prejudiced B.R., for the agency to determine in the first instance on remand.”
“According to B.R.’s evidence, DHS could not have obtained the birth certificate without using at least some of the information available to DHS only in B.R.’s confidential juvenile court record, to wit his date of birth, the Mexican state in which he was born, his parents’ names, etc. That is specific evidence of taint, yet nothing in the record indicates that the agency seriously considered this evidence. Instead, it appears the agency arbitrarily ignored it and found the government’s evidence free from taint. That is error and an abuse of discretion.” “If ICE located the birth certificate by using information gleaned from B.R.’s juvenile records or his I-213s, it would not be free from the taint of that alleged suppressible violation. If ICE used only his name, or used information obtained in its interview with B.R., then DHS has the burden on remand to so demonstrate, and to so demonstrate with sufficient detail to allow the IJ to verify that the evidence does not constitute fruit of unlawful government conduct.”
“We note, however, that B.R. never satisfied his burden to submit specific evidence that DHS’s presentence investigation report was tainted.” “B.R.’s conviction is a matter of public record and information contained within that official file is per se independent of any suppressible violation committed pursuant to unrelated immigration proceedings. B.R. has not provided any evidence that DHS uncovered his federal conviction by using information obtained from B.R.’s unrelated California state juvenile criminal record. Even so, we have serious misgivings as to the propriety of the admission of the presentence investigation report that should be addressed on remand, including how DHS obtained the presentence investigation report when it was placed under seal by the federal district court. Given these misgivings and the fact that the agency relied on both the birth certificate and the presentence investigation report in determining that DHS’s evidence was sufficient to establish alienage, we refrain from concluding in the first instance that the presentence investigation report alone is sufficient to establish B.R.’s alienage.”
The full text of the amended decision in BR v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/23/19-70386.pdf
My blog post on the original panel decision can be found here: