NIJC - 2nd Cir. addresses notice requirements for minors between 14 and 17

2nd Cir. addresses notice requirements for minors between 14 and 17

Wednesday, 23 July 2008

Llanos-Fernandez v. Mukasey (2nd Cir. 7/22/08)

PER CURIAM Straub, Wesley, Livingston

A 15 year old was in the custody of his uncle, the then-INS served the hearing notice on the boy, not the uncle - an in absentia order ensued. The boy moved to rescind just before age 21. The regs require notice on an adult for under 14 years; the 9th Cir., Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004) found that service on all minors had to be on the adult custodian. The 8th Cir. disagreed, Llapa-Sinchi v. Mukasey, 520 F.3d 897 (8th Cir. 2008). The 2d cir didn't follow either circuit, opting instead to remand to the Board for a published (or at least, thoroughly reasoned) opinion.

(more below)

Read opinion here

Petitioner entered the U.S. at age 14 and was released into the custody of his uncle in December 1999. While a notice of a master hearing in his case was mailed to him, the notice was not served on his uncle, nor was the uncle served with the NTA. Petitioner was ordered removed in abstentia in November 2000. In May 2006, Petitioner filed a motion to reopen and rescind the in abstentia removal order, arguing that because he was ony 15 at the time the notice of hearing was issued, his uncle should have been served with the notice as well. The IJ denied the motion, and the BIA affirmed through an unpublished per curiam decision.

The 2nd Circuit noted that the INA is silent with respect to service upon minors, and that the relevant regs provide for service of notice on the adult relative, guardian, etc. where the respondent is under age 14. See 8 CFR 103.5a(c)(2)(ii). The regs relating to release of juveniles into the custody of an adult define "juvenile" as an alien under age 18.

The court then addressed the two on point decisions in other circuits:

The 9th Circuit, in Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), with facts similar to the case at hand, held that the minor respondent was deprived of "the effective notice to which he was legally entitled" under the statute. The 9th Cir. also pointed out the arbitrariness of the age cutoff in 8 CFR 103.5a(c)(2)(ii). Finally, the 9th Cir. concluded that the government's practice of only serving minors over the age of 14 implicated due process concerns, and thus it construed the statute and regs as requiring notice to the adult custodian if the minor is under 18.

The 8th Circuit, on the other hand, found in Llapa-Sinchi v. Mukasey, 520 F.3d 897 (8th Cir. 2008), that the regs regarding service for respondents under 14, and release into custody for respondents under 18, were not inconsistent with each other and furthermore that the due process challenge had no merit.

The court decided to remand the case to the BIA to issue a precedential interpretation of the regs and statute, based on the following, and because the Board's unpublished two-paragraph opinion did not provide any meaningful interpretation of the statute and regs nor a reason for rejecting Flores-Chavez:

(1) The statute and regs do not explicitly address service upon respondents age 14 or over

(2) DHS's implicit recognition that juveniles under 18 require the assistance of a responsible adult

(3) BIA's explicit recognition in its own case law that the purpose of requiring service upon the person with whom a minor respondent resides is to direct service on the person most likely responsible for ensuring that the respondent appears in court.

Petition for review granted. BIA decision vacated, and case remanded to the BIA.

Atty for petitioner: Kevin E. Dehghani, New Haven, CT

Comments

Add New

Write comment

Name:

Email:

Website:

Title:

UBBCode: