UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW BOARD OF IMMIGRATION APPEALS FALLS CHURCH, VIRGINIA MOTION TO RECONSIDER

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1 Michelle N. Mendez Catholic Legal Immigration Network, Inc. (CLINIC) 8757 Georgia Ave., Ste. 850 Silver Spring, MD Phone: (540) EOIR ID: EZ Non-Detained Counsel for Respondent UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW BOARD OF IMMIGRATION APPEALS FALLS CHURCH, VIRGINIA In the Matter of: XXXX, Xxxx A#: ###-###-### Minor Respondent MOTION TO RECONSIDER i

2 TABLE OF CONTENTS TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii I. INTRODUCTION... 1 II. ISSUES PRESENTED... 1 III. STANDARD OF RECONSIDERATION... 1 IV. SUMMARY OF ARGUMENT... 2 V. ARGUMENT The Board erred in holding that an Immigration Judge has jurisdiction to grant DHS a continuance following a finding of defective service of the Notice to Appear a. DHS failed to properly serve the Respondent just as it did with the respondent in Matter of Mejia-Andino b. The Immigration Judge lacks jurisdiction to grant the Department of Homeland Security a continuance following a showing of defective service of the NTA that initiated the removal proceedings c. DHS s proposed authority on the propriety of continuances rather than termination is inapplicable to this minor Respondent The Board erred in relying on Matter of E-S-I- to hold that a continuance in the case of minors under 14 is proper recourse a. Statutory interpretation principles require a reading of 8 C.F.R (c)(2)(ii) that distinguishes minors under 14 years of age from the mentally incompetent b. Matter of E-S-I- is factually distinguishable from this case yet the BIA s reasoning in Matter of E-S-I- supports termination VI. CONCLUSION ii

3 CASES TABLE OF AUTHORITIES Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407 (1942) DeLeon v. Holder, No (4th Cir. Feb. 6, 2015)... 7 Elkins v. Moreno, 435 U.S. 647 (1978)... 7 Gonzalez v. Reno, 212 F.3d 1338 (11th Cir.) INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) Kohli v. Gonzales, 473 F.3d 1061 (9th Cir. 2007)... 7, 9 Latu v. Ashcroft, 375 F.3d 1012 (10th Cir. 2004)... 9, 10, 11 Matter of Amaya, 21 I&N Dec. 583 (BIA 1996) Matter of Cubor, 25 I&N Dec. 470 (BIA 2011)... 12, 13 Matter of E-L-H-, 23 I&N Dec. 814 (BIA 2005) Matter of E-S-I- 26, I&N Dec. 136 (BIA 2013)... passim Matter of Figueroa, 25 I&N Dec. 596 (BIA 2011) Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008) Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001)... 6, 9 Matter of Hernandez, 21 I&N Dec. 224 (BIA 1996) Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011) Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002)... passim Matter of Villarreal-Zuniga, 23 I&N Dec. 886 (BIA 2006) Matter of W-A-F-C-, 26 I&N Dec. 880 (BIA 2016)... passim May v. Anderson, 345 U. S. 528 (1953) Montclair v. Ramsdell, 107 U.S. 147 (1883)... 11, 12 Montilla v. INS, 926 F.2d 162 (2d Cir. 1991) Thapa v. Gonzales, 460 F.3d 323 (2d 2006)... 9, 10 United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) Yellin v. United States, 374 U.S. 109 (1963) STATUTES INA 240(c)(6)...3 INA 239(a)(1)...4, 5, 8, 10 OTHER AUTHORITIES BIA Practice Manual, Chapter 3.1(b)(ii)...3, 4 Immigration Court Practice Manual, Chapter 4.2(a) (June 10, 2013)...9 REGULATIONS 8 C.F.R (a)...8, 9, 11, 13 8 C.F.R (b)(2) C.F.R (b)(1) C.F.R C.F.R , 10 8 C.F.R a(c)(2)(ii)...15 iii

4 8 C.F.R (c)(2)(ii)... passim 8 C.F.R (a) C.F.R (c)...16 iv

5 I. INTRODUCTION Pursuant to 240(c)(6) of the Immigration and Nationality Act ( INA ), Respondent Xxxx Xxxx, hereby seeks reconsideration of the Board of Immigration Appeal s ( BIA ) December 16th, 2016 decision. II. ISSUES PRESENTED 1. Whether an Immigration Court has jurisdiction to continue an immigration proceeding upon finding that the Department of Homeland Security has effected defective service of a Notice to Appear ( NTA ) on a minor under the age of 14 in violation of 8 C.F.R (c)(2)(ii)? 2. Whether Matter of E-S-I-, which refers to incompetent adults requiring ongoing assessment of competence, applies to minors under 14 and therefore allows DHS to a correct a mistake in a mandatory service process as required by 8 C.F.R (c)(2)(ii) and Matter of Mejia-Andino? III. STANDARD OF RECONSIDERATION A motion to reconsider shall specify the errors of law or fact in the previous order and shall be supported by pertinent authority. INA 240(c)(6)(C); 8 C.F.R (b)(1). In general a respondent may file one motion to reconsider within 30 days of the date of a final removal order. INA 240(c)(6)(A)&(B), 8 C.F.R (b)(2). Because the BIA uses calendar days to calculate deadlines, Saturdays, Sundays, and legal holidays are counted toward the computation of a 1

6 deadline. BIA Practice Manual, Chapter 3.1(b)(ii). If, however, a deadline date falls on a weekend or a legal holiday, the deadline is construed to fall on the next business day. Id. This motion specifies specific errors of law in Matter of W-A-F-C-, 26 I&N Dec. 880 (BIA 2016), the previous decision, and is supported by pertinent authority. The BIA issued its decision in Respondent s case on December 16, This motion is timely filed within 30 calendar days of the date of that decision. IV. SUMMARY OF ARGUMENT When DHS fails to comply with INA 239(a)(1), 8 C.F.R (c)(2)(ii) and Matter of Mejia-Andino prior to filing the NTA, the Immigration Court does not obtain jurisdiction over the respondent. This error cannot be cured in the course of these proceedings. The Court therefore has no choice but to terminate the proceedings and may not continue the matter to provide DHS an opportunity to fix the error. The BIA s reliance on Matter of E-S-I- to find that a continuance in the cases of minors under 14 who DHS has failed to properly serve is misplaced. V. ARGUMENT The BIA should reconsider its decision to give DHS a second opportunity to effect proper service of a NTA on minors under the age of 14 without addressing the threshold question of whether it had jurisdiction to do so. Principles of statutory interpretation as well as the facts in this case and the BIA s reasoning in Matter of E-S-I- require the BIA to reconsider its interpretation and reliance on Matter of E-S-I- to support its holding that a continuance is proper redress for DHS s violation of a mandatory regulation aimed at protecting the rights of vulnerable minors. 2

7 1. The Board erred in holding that an Immigration Judge has jurisdiction to grant DHS a continuance following a finding of defective service of the NTA. a. DHS failed to properly serve the Respondent just as it did with the respondent in Matter of Mejia-Andino. There is no question that DHS service of the NTA on the minor Respondent was defective. Matter of W-A-F-C-, 26 I&N Dec. 880, 881 (BIA 2016). DHS violated INA 239(a)(1) by not providing mandatory written notice (in this section referred to as a notice to appear ) to the respondent in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien's counsel of record, if any) and 8 C.F.R (c)(2)(ii) that requires that 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. (emphasis added). The BIA has upheld the mandatory nature of the additional service requirement for minors under 14 to a parent or parents residing in the United States with whom the minor will reside by unequivocally finding that termination is proper. Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002). In Matter of Mejia-Andino, the BIA did not discuss or require a show of prejudice presumably because 8 C.F.R (c)(2)(ii) mandates additional service requirements in recognition of the many vulnerabilities of minors under 14. Id. Instead, the BIA upheld the Immigration Judge s fundamental fairness assessment. Id. at 535. Therefore, INA 239(a)(1), 8 C.F.R (c)(2)(ii), and Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002), must be considered together when determining proper service of the NTA in the case of a minor under 14 such as the respondent. This authority, as applied to the facts of this case, prove not only that service of the NTA upon the Respondent was defective, but also that this case is analogous to Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002). In Matter of Mejia-Andino, DHS served the NTA on the uncle of the 3

8 under 14 respondent despite knowing that her parents were in Detroit, Michigan. 23 I&N Dec. 533, 536. Here, DHS allegedly served the conservator without a name or signature of an actual person appearing on the NTA rather than serving the under 14 minor s U.S.-residing mother. IJ Decision at 2. At the February 17, 2016 master calendar hearing the Respondent s counsel orally moved to terminate proceedings based on this improper service of the NTA. IJ Decision at 1. In both cases someone other than the U.S.-residing parent was served despite DHS knowing about this parent. In fact, DHS service on the uncle in Matter of Mejia-Andino surpassed the service to a conservator in this case as that included a verifiable person as opposed to conservator without a name or signature. IJ Decision at 2 ( DHS has not shown it served anyone this NTA. ). Defective service in Matter of Mejia-Andino led to the BIA holding that removal proceedings were properly terminated. 23 I&N Dec. 533 (BIA 2002). Yet, here, the BIA held that a continuance, not termination, was proper to allow DHS to correct its prior service mistake. Matter of W-A-F-C-, 26 I&N Dec. 880 (BIA 2016). To distinguish this case from Matter of Mejia-Andino, the BIA compared DHS s efforts to serve the parent. The BIA found instructive that, unlike in Matter of Mejia-Andino, DHS offered to personally serve the Respondent s parent at the February 17, 2016 master calendar hearing and then attempted to re-serve the NTA thereafter. 1 Matter of W-A-F-C-, 26 I&N Dec. 880, 881 (BIA 2016) ( We upheld the Immigration Judge s termination of proceedings because there was no indication that the DHS made any effort to serve the [NTA] on the respondent s parents, who 1 Defective service of the NTA prior to the commencement of removal proceedings increases the chances of inadvertent failures to appear by under 14 minors whose parents may not have known of the obligation to inform the court of a change of address, etc. Only those parents able to access affordable counsel or one of the few Legal Orientation Programs for Custodians of Unaccompanied Minors (LOPC) will know to report a change of address, how to report a change of address, and when to appear at a hearing. As discussed by amici curiae, this is a question of luck and the fundamental fairness required in these proceedings cannot be grounded in mere luck. 4

9 apparently lived in the United States. ). The BIA overlooks that DHS had no reason to attempt service on the parent in Matter of Mejia-Andino because the respondent did not appear in Immigration Court. 23 I&N Dec. 533 (BIA 2002). Instead of attempting proper service, DHS zealously requested an in absentia removal order. Id. Then in its appeal to the BIA, DHS argued that the in absentia order was based on proper service of the NTA. Matter of Mejia-Andino. 23 I&N Dec. 533 (BIA 2002). An attempt at proper service was therefore not beneficial to DHS in Matter of Mejia-Andino. 2 However, here, following the 2002 holding in Matter of Mejia-Andino and the application of that holding to cases like this Respondent s, DHS sought to serve the parent after removal proceedings had already begun in an attempt to rectify its mistake. IJ Decision at 2. DHS did this only after Respondent orally moved for termination. Id. DHS did this for its benefit, not the Respondent s. Had DHS wished to benefit and protect the under 14 Respondent, it would not have opposed termination and, once proceedings were terminated, attempted proper service. 3 Therefore, in both Matter of Mejia-Andino and this case, DHS acted to further its interests and the BIA should not rely on its late efforts to serve the parent to reward a continuance. The BIA also distinguished the ages of the minor in Matter of Mejia-Andino from the respondent in the instant case, without explanation. Matter of W-A-F-C-, 26 I&N Dec. 880, There is no reason to believe that with Matter of W-A-F-C-, DHS will take due diligence to seek to properly serve a NTA rather than advocate for a removal order for vulnerable minors. Instead, DHS will likely rely on an in an absentia order, if the minor fails to appear, and a continuance, if the minor does appear and proves that defective service of the NTA that could have led to an in absentia order. This holding therefore places the burden on Immigration Judges to carefully review the respondent s file and compare it with the DHS respondent file before issuing an in absentia removal order for minors under 14 or, in the U.S. Court of Appeals for the Ninth Circuit jurisdiction, minors under 18. See Flores-Chavez v. Ashcroft, 362 F.3d 1150, (9th Cir. 2004). However, to date, Immigration Judges have been unable take on this burden as shown by the F.L.B. v. Lynch (J.E.F.M. v. Holder), No. 2:14-cv (W.D. Wash. filed July 9, 2014) litigation and as reported by advocates in a February 9, 2015 national sign-on letter to Juan P. Osuna, EOIR Director, regarding children ordered removed in absentia without notice. 3 This procedure would allow DHS to verify the current address for the Respondent and serve the parent using that correct address. 5

10 (BIA 2016). The regulation expressly states minors under the age of 14, and makes no reference to any other age not 12, not 8, etc. 8 C.F.R (c)(2)(ii). DHS promulgated a regulation with a bright line rule that the BIA ignored and therefore acted ultra vires in its interpretation. The sole consideration for the BIA under this regulation in whether a respondent is a minor under 14 at the time of attempted service of NTA. Both the respondent in Matter of Mejia-Andino and the instant Respondent were under 14 at the time of service of the NTA. Because this case is analogous to and indistinguishable from Matter of Mejia-Andino, it requires the same resolution. b. The Immigration Judge lacks jurisdiction to grant the Department of Homeland Security a continuance following a showing of defective service of the NTA that initiated the removal proceedings. While the BIA did not address the question of jurisdiction, in holding that DHS merits a continuance rather than the minor respondent s case requiring termination, it implicitly holds that the Immigration Court has the jurisdiction to grant a continuance. However, jurisdiction over a respondent only vests with the Immigration Court upon the filing of an NTA that has been properly served. The BIA s implicit holding ignores the INA, the Regulations, and BIA precedent. See INA 239(a)(1); 8 C.F.R (a); 8 C.F.R (c)(2)(ii); Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001); Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002). Proper NTA service is a prerequisite to an Immigration Court s jurisdiction. The filing of an NTA which include[s] a certificate showing service on the opposing party triggers jurisdiction. See 8 C.F.R (a). The BIA s ruling in this case failed to address or even mention 8 C.F.R (a). Yet the BIA has previously recognized the service requirement as jurisdictional under 8 C.F.R See Matter of G-Y-R-, 23 I&N Dec. 181, 184 (BIA 2001) ( The alien must be properly served with the [NTA] before... the Immigration Judge is authorized to proceed.... ) 6

11 (emphasis added). The Office of the Chief Immigration Judge has similarly recognized the service requirement as jurisdictional. See Immigration Court Practice Manual, Chapter 4.2(a) (June 10, 2013) ( Removal proceedings begin when the Department of Homeland Security files a [NTA] (Form I-862) with the Immigration Court after it is served on the alien. (emphasis added)). The U.S. Court of Appeals have also held that without proper service, jurisdiction does not vest. See e.g., DeLeon v. Holder, No (4th Cir. Feb. 6, 2015) (citing 8 C.F.R stating that Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service. The charging document must include a certificate showing service on the opposing party ); Kohli v. Gonzales, 473 F.3d 1061, 1065 (9th Cir. 2007) ( [J]urisdiction vests in the Immigration Court when a charging document is filed with the Immigration Court. Section requires a certificate showing service, but does not suggest that there are any other jurisdictional requirements. ) (citations omitted) (emphasis added). DHS s subsequent service of the NTA did not cure this jurisdictional flaw. First, if cure of improper service were possible, the regulations could have made this explicit. But they do not. This is in stark contrast to 8 C.F.R , which allows DHS to cure problems related to an NTA s charges or factual allegations in the course of the removal proceedings themselves. See 8 C.F.R (allowing DHS to lodge additional or substituted charges of deportability and/or factual allegations in the proceedings). Under accepted rules of interpretation, the regulations silence on the subject compels the conclusion that improper initial NTA service is non-curable. See Elkins v. Moreno, 435 U.S. 647, 666 (1978) (absence of reference to an immigrant s intent to remain a citizen of a foreign country is deliberate when contrasted with other provisions of comprehensive and complete immigration code). That 8 C.F.R allows, generally, for service of documents on the record during a hearing does not trump 8 C.F.R s more 7

12 specific requirement that the NTA must include a certificate showing service on the opposing party pursuant to 8 C.F.R C.F.R requires a certificate of service, and pursuant to 8 C.F.R simply refers to the method of service to be used prior to the certificate of service s completion ( in person or by first class mail ). DHS had the burden of proving that jurisdiction vested when it filed the NTA with the Immigration Court, but DHS was not forced to meet its burden in this case. DHS has the burden of proving by clear, unequivocal, and convincing evidence that it provided the written notice required under section 239(a)(1) of the INA, complying with the specific instructions for service of an NTA on minors under 14 years of age required under 8 C.F.R (c)(2)(ii), and upholding the protections put forth by the BIA in Matter of Mejia-Andino. DHS has failed to satisfy this burden. For any subsequent NTAs to properly vest jurisdiction with the Immigration Court, the initial proceedings conditioned upon defective service must have been terminated. Only then could DHS make efforts to properly re-serve the NTA. 4 Had the BIA held DHS to its burden, it would have found that these violations rendered jurisdiction vesting impossible. Therefore, the BIA must reconsider its holding and instead find that the only legally consistent outcome is termination of proceedings. However, if the BIA believes that jurisdiction vested notwithstanding 4 Additionally, a straightforward rule on termination rather than a continuance recognizes the overburdened Immigration Court dockets nationwide, prevents confusion caused by multiple NTAs in one proceeding, limits inevitable future litigation on these issues, and should lead to DHS investing in proper training on this issue, which is the agency s burden, not the Immigration Judges. Further, if the BIA wishes to allow DHS to fix improper NTA service for vulnerable minors lucky enough to have an attorney to challenge service, then the defense bar will also desire and require multiple opportunities to comply with basic procedural rules, which will likely be sought for deadline compliance and in their own motions for a continuance. This will only further add to the immigration dockets. See, e.g., Julia Preston, Deluged Immigration Courts, Where Cases Stall for Years, Begin to Buckle, NY Times, Dec. 1, 2016, (visited January 13, 2017). 8

13 the INA, regulations, and precedent, the BIA should explicitly state that and offer analysis. The BIA s failure to address this is a fatal flaw in its original decision that must be reconsidered. c. DHS s proposed authority on the propriety of continuances rather than termination is inapplicable to this minor Respondent. DHS misstates the holding of Kohli v. Gonzales, 473 F.3d 1061 (9th Cir. 2007) and the relevance of Thapa v. Gonzales, 460 F.3d 323, 335 (2d 2006) and Latu v. Ashcroft, 375 F.3d 1012 (10th Cir. 2004) to argue that termination is not the proper remedy in cases of defective service thereby bypassing the threshold jurisdictional requirement. In Kohli, the Court of Appeals for the Ninth Circuit treated proper service as jurisdictional. It concluded that the government met its burden of establishing jurisdiction in the Immigration Court by issuing a NTA [ ] and then filing that [NTA] with the Immigration Court. Id. at 1068; 8 C.F.R , (a). DHS claimed that Kohli held that the government s failure to serve the alien as required by the applicable statutes [does] not deprive the IJ of jurisdiction, but that is not the court s holding. Rather, that statement reflects the Ninth Circuit s partial summary of G-Y-R- s holdings. The full passage reads: For our purposes, Matter of G-Y-R- has two critical holdings. The first is that the government s failure to serve the alien as required by the applicable statutes did not deprive the IJ of jurisdiction. The IJ would retain jurisdiction if the agency could show either that the alien had received actual notice or that it had complied with the statutory provisions for constructive notice. Id. at Furthermore, in Kohli, the petitioner did not challenge NTA service. To the contrary, she admitted proper service and instead argued that the name and title of the issuing officer were not legible on the [NTA]. Id. at 1063, The Ninth Circuit found that this defect, which it noted was not a direct violation of any applicable statute or regulation, was non-jurisdictional. Id. at Thus the Ninth Circuit s decision in Kohli supports rather than undermines the proposition that jurisdiction vests with the Immigration Court only upon proper filing of an NTA. 9

14 In Thapa v. Gonzales, 460 F.3d 323 (2d 2006), the Court of Appeals for the Second Circuit considered the case of an adult who was issued three NTAs, the first which lacked a signature. The adult respondent argued that he was served with an invalid NTA and the NTA was not issued by any officer under 8 C.F.R (a). The Second Circuit held that the mere lack of a signature on the NTA, where the proper signature was on the NTA submitted to the Immigration Court and where the substance of the NTA was the same, does not rise anywhere to the level of the respondent in Montilla v. INS, 926 F.2d 162 (2d Cir. 1991). Incidentally, while neither the respondent nor the issue in Thapa v. Gonzales compare to this Respondent or the defective service issue, the issue in Montilla v. INS does. The Montilla v. INS respondent was detained and appeared pro se yet the Immigration Judge failed to seek the respondent s position on his right to counsel at no expense to the government. The Second Circuit held that the Accardi doctrine required a new hearing. The seeds of the Accardi doctrine are found in the long-settled principle that the rules promulgated by a federal agency, which regulate the rights and interests of others, are controlling upon the agency. 926 F.2d 162, 166 (2d Cir. 1991) (citing Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407 (1942) (agency regulations on which individuals are entitled to rely bind agency) citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954)). Where the violated agency regulation governs individual interests, like 8 C.F.R (c)(2)(ii), the Accardi doctrine requires reversal irrespective of whether a new hearing would produce the same result. 926 F.2d at 170 (citing Yellin v. United States, 374 U.S. 109, 121 (1963)). Basically, the respondent should have the benefits accorded under regulations governing individual interests. Though, here, the BIA seeks to provide redress to the at-fault party rather than the aggrieved party. Termination for the respondent and not a continuance for DHS is the required resolution in this case. 10

15 In Latu v. Ashcroft, 375 F.3d 1012 (10th Cir. 2004), the Court of Appeals for the Tenth Circuit reviewed an appeal from the district court's decision to deny a habeas corpus petition and considered whether failure to provide notice of date, time, and place of the hearing and a charge in the NTA constituted a due process violation. There was no improper service issue nor a similarly situated respondent. The sole application of Latu v. Ashcroft to this case is the recognition of when jurisdiction vests with an Immigration Court ( the INS commenced removal proceedings by filing the notice with the Immigration Court in Colorado and serving it on Mr. Latu. See 8 C.F.R (a) ). Latu v. Ashcroft, 375 F.3d at Therefore, Latu supports rather than undermines the proposition that jurisdiction vests only upon proper filing of an NTA. Thus, DHS misstates the holding and relevance of three U.S. Court of Appeals decisions on which it relies for the proposition that a continuance rather than termination is proper. Not only does DHS misstate these holdings, but these holdings actually support respondent s position. 2. The Board erred in relying on Matter of E-S-I- to hold that a continuance in the case of minors under 14 is proper recourse. a. Statutory interpretation principles require a reading of 8 C.F.R (c)(2)(ii) that distinguishes minors under 14 years of age from the mentally incompetent. A basic principle of statutory interpretation is the requirement to give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed. Montclair v. Ramsdell, 107 U.S. 147, 152 (1883). When interpreting statutes and regulations, the BIA must first look to the plain meaning of the language and give effect to unambiguously expressed intent. Matter of Figueroa, 25 I&N Dec. 596, 598 (BIA 2011); Matter of F-P-R-, 24 I&N Dec. 681, 683 (BIA 2008). Intent is presumed to be expressed by the ordinary meaning of the words used. Matter of 11

16 Figueroa, 25 I&N Dec. 598; see also INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). All of the provisions of a statute or regulation must be given effect. Matter of E-L-H-, 23 I&N Dec. 814, 823 (BIA 2005). However, the regulation that specifically addresses the issue at hand is controlling. Matter of Cubor, 25 I&N Dec. 470 (BIA 2011). The BIA construes the language of the regulations following the same principles of interpretation applied to statutory provisions. See Matter of Villarreal-Zuniga, 23 I&N Dec. 886, 889 (BIA 2006). Section 103.8(c)(2) of the Regulations 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. (Emphasis added). The regulation expressly and intentionally identifies two different groups: mentally incompetents and minors under 14 years of age. Id. The regulation then proceeds to use the disjunctive or to distinguish the incompetent from a minor. Id. An interpretation in which these groups are one and the same would render not only the specific references to minors as well as and followed by or superfluous and be at odds with the plain language of the regulation. See Montclair v. Ramsdell, 107 U.S. 147, 152 (1883); Matter of E-L-H-, 23 I&N Dec. 814, 823 (BIA 2005). Should any doubt exist as to the intent of 8 C.F.R (c)(2)(ii), the BIA should consider the ease with which DHS could have included minors under 14 years of age as part of mental incompetents: Incompetents and minors. In case of mental incompetency, which includes minors under the age of 14, and 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. Therefore, had DHS intended for these two groups to be treated the same, it would have drafted the regulation differently. 12

17 Preventing a redundant interpretation of plain language aside, the tests used to analyze the application of 8 C.F.R (c)(2)(ii) to these two groups confirms that they should be treated differently. A bright line test based on age is required to assess the application of 8 C.F.R (c)(2)(ii). Either the minor is under or over the age of 14 at the time of service. See Matter of Cubor, 25 I&N Dec. 470 (BIA 2011) ( We conclude that the regulation at 8 C.F.R a(c)(2)(ii) governs the service of notice on minors and that it only requires notice to be served on an adult when the minor is under 14 years of age. ). However, the mentally incompetent are not subject to a bright line test. See Matter of M-A-M-, 25 I&N Dec. 474, 480 (BIA 2011). The test for determining competency to participate in immigration proceedings is whether the person has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses. Id. This multi-part test is required because, unlike age, mental competency is a variable condition. Id. As a result, Immigration Judges need to consider indicia of incompetency throughout the course of proceedings to determine whether an alien s condition has deteriorated or, on the other hand, whether competency has been restored. Id. Therefore, because mental competency is a variable condition, this assessment requires ongoing application by Immigration Judges whereas DHS only applies the bright-line test of age to minors at the time of service. In fact, not only do these two groups require two different tests in recognition of how, but, according to Matter of M-A-M- and Matter of E-S-I-, the burden for determining mental competency falls on Immigration Judges, while the burden of determining age, according to Matter of Mejia-Andino, falls on DHS. Yet despite the plain language of the regulation and BIA precedent requiring different tests and even which agency has the burden of applying the tests the BIA has conflated mental 13

18 incompetents with minors under 14 in its Matter of W-A-F-C-, 26 I&N Dec. 880 (BIA 2016) decision. The decision does this by applying the holding in Matter of E-S-I-, a case contemplating mentally incompetents, to minors under 14. Matter of E-S-I- held that If the DHS did not properly serve the respondent where indicia of incompetency were either manifest or arose at a master calendar hearing that was held shortly after service of the [NTA], the Immigration Judge should grant a continuance to give the DHS time to effect proper service. In so doing, the decision effectively renders redundant the plain language of the regulation thereby violating mandatory principles of interpretation. b. Matter of E-S-I- is factually distinguishable from this case yet the BIA s reasoning in Matter of E-S-I- supports termination. The BIA held that it was unpersuaded by the Immigration Judge s attempts to distinguish the facts in Matter of E-S-I- from the facts in this case. 5 Matter of W-A-F-C-, 26 I&N Dec. 880, 882 (BIA 2016). Yet the facts are starkly different. Matter of E-S-I-- involved a confined mentally incompetent Lawful Permanent Resident adult respondent charged as an aggravated felon. Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013). The Immigration Judge found that the DHS had not properly served the confined respondent with the NTA and terminated the proceedings without prejudice. Id. When DHS again did not properly serve the respondent pursuant to 8 C.F.R (c)(2)(i)-(ii), the Immigration Judge terminated proceedings with prejudice. Id. It was 5 The BIA cited Matter of Hernandez, 21 I&N Dec. 224 (BIA 1996), but that case involved a nonjurisdiction conferring, mandatory DHS advisal. 21 I&N Dec. 224 (BIA 1996) ( The explanation requirement of 8 C.F.R (c) is not jurisdictional. ). The BIA held in that case that a violation of a non-jurisdiction conferring DHS advisal can be remedied with corrective action short of termination. 21 I&N Dec. 224, 228 (BIA 1996). Here, the regulation is jurisdictional and therefore merits termination. The BIA seemed to recognize this important distinction in Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002) a case dealing with a jurisdictional regulation and decided just six years later as it completely omitted Matter of Hernandez, 21 I&N Dec. 224 (BIA 1996) from the decision. 14

19 following the second unsuccessful attempt at proper service and termination with prejudice that DHS appealed the decision. 6 Here, Respondent was an under 14 year old minor. DHS attempted to re-serve the NTA on Respondent s mother after Respondent s was released from DHHS ORR custody. Unlike Matter of E-S-I-, DHS prematurely attempted re-service before the Immigration Judge granted termination based on the improperly served NTA that DHS used to file with the Immigration Court. Therefore, the only and distinguishable similarity between the facts in Matter of E-S-I- and this case is that it involves vulnerable respondents with a history of confinement. Despite the distinguishable facts between this case and Matter of E-S-I-, the BIA s reasoning in Matter of E-S-I- supports termination rather than a continuance. Matter of E-S-I-, 26 I&N Dec (BIA 2013). In Matter of E-S-I-, the BIA held that: If the DHS did not properly serve the respondent where indicia of incompetency were either manifest or arose during a master calendar hearing that was held shortly after service of the notice to appear, the Immigration Judge should grant a continuance to give the DHS time to effect proper service. If indicia of incompetency become manifest at a later point in the proceedings and the Immigration Judge determines that safeguards are needed, he or she should evaluate the benefit of re-serving the notice to appear in accordance with 8 C.F.R (c)(2)(i) and (ii) as a safeguard. Matter of E-S-I-, 26 I&N Dec. 145 (BIA 2013) (emphasis added). Where the indicia of a respondent s incompetency are manifest, the DHS should serve the NTA on three individuals as this will best protect the incompetent respondents. Id. This holding allowing DHS a continuance to effect proper service on three individuals, including the respondent him or herself, recognizes that, unlike minors under 14, mentally incompetent adults likely pose a danger to themselves and, those with criminal records, to society. DHS therefore cannot risk undergoing the proper 6 Indeed, it is this procedural posture that is proper in this case; termination and new NTA service following termination. However, DHS had to appeal since the Immigration Judge terminated with prejudice rather than attempt proper service for a third time. 15

20 procedural posture of termination and then a new attempt at proper service as termination could lead to release from confinement, the respondent absconding, and the respondent being placed at risk. Thus in the case of mentally incapable adults, this holding serves to protect the respondent and perhaps others. That holding is not for DHS s benefit. A consistent application of this reasoning to minors under 14 requires that DHS not be afforded the opportunity to re-serve the NTA without the Immigration Judge first terminating the improperly initiated proceedings. Termination of proceedings ensures that DHS will uphold its burden of properly serving the adult with whom a minor respondent will reside. See Matter of Amaya, 21 I&N Dec. 583 (BIA 1996); Gonzalez v. Reno, 212 F.3d 1338, (11th Cir.), cert. denied, 530 U.S (2000). Unlike incompetent adults whose whereabouts and supervision can change, an under 14 minor will reside with a parent in the United States the vast majority of the time as recognized in Matter of Mejia-Andino. 23 I&N Dec. 533 (BIA 2002) ( The Service has emphasized, and the courts have acknowledged, that parents have ultimate responsibility in cases involving minor respondents. ). Thus when DHS learns that a parent or parents are in the United States upon apprehension of the minor, DHS is on notice that the minor will not remain in DHHS ORR custody indefinitely and that an adult other than a parent who may not be as invested in the minor will not become the custodian/sponsor. See Matter of Mejia-Andino. 23 I&N Dec. 533, 536 (BIA 2002) ( The Form I-213 states that the respondent was traveling to Detroit to reside with her family, lists the names of her parents, and gives a Detroit, Michigan, address. ); Cf. Matter of Amaya, 21 I&N Dec. 583 (BIA 1996) ( Failing to adopt this reasonable interpretation of the somewhat ambiguous regulatory language [residence] could lead to an absurd situation in which the Service would be unable to serve an Order to Show Cause in the case of an alien under the age of 14 years if it places that alien, as it may pursuant to 8 C.F.R (c) (1996), in a privately 16

21 contracted detention facility. ). For this reason the BIA has required service of the NTA on the parent(s) upon being on notice that the parent(s) is in the United States. Matter of Mejia-Andino, 23 I&N Dec. at 536 ( The question here is whether the regulation requires service on the respondent s parents. We find that it does. ). Any subsequent, remedial service of the NTA on a parent renders void the holding and protective measures recognized in BIA precedent specifically discussing minors under 14 and never mentioning incompetent adults. Id. Upholding DHS s burden to properly serve the parent(s) in the United States early in the process best protects the interests of vulnerable under 14 minors who does not pose the same risks to self or others as mentally incompetent adults. Like the BIA s reasoning in Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013), the BIA s reasoning in Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002) is not for DHS s benefit, as intended by 8 C.F.R (c)(2)(ii). However, Matter of W-A-F-C-, 26 I&N Dec. 880, 882 (BIA 2016) solely benefits DHS, contrary to 8 C.F.R (c)(2)(ii). VI. CONCLUSION Children have a very special place in life which law should reflect. Legal theories and their phrasing in other cases readily lead to fallacious reasoning if uncritically transferred to determination of a State s duty towards children. May v. Anderson, 345 U. S. 528, 536 (1953) (Frankfurter, J. concurring). Section 103.8(c)(2)(ii) of the Regulations and the BIA s interpretation of this regulation in Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002) reflect the special circumstances of minors under 14 years of age. However, in Matter of W-A-F-C-, 26 I&N Dec. 880 (BIA 2016) the BIA did exactly what Justice Felix Frankfurter warned against. The BIA gutted the intent of 8 C.F.R (c)(2)(ii) and Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002) when it uncritically transferred legal theories from Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013) 17

22 to minors under 14 and without first considering the issue of jurisdiction. For the foregoing reasons, the BIA should grant Respondent s motion to reconsider. Respectfully submitted this 17 th day of January 2017, Michelle N. Mendez, Counsel for Respondent Catholic Legal Immigration Network, Inc. (CLINIC) 8757 Georgia Ave., Ste. 850 Silver Spring, MD Phone: (540) mmendez@cliniclegal.org 18