Introduction: Matter of W-A-F-C-, 26 I&N Dec. 880 (BIA 2016)

On December 16, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of W-A-F-C-, 26 I&N Dec. 880 (BIA 2016) [PDF version]. In its decision, the Board held that when the Department of Homeland Security (DHS) seeks to re-serve a respondent with a notice to appear after the initial attempt at service was defective under the rules for serving minors under the age of 14, a continuance of proceedings should be granted for the purpose of re-serving the notice to appear. In rendering this decision, the Board followed its precedent decision in the Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013) [PDF version].

In this article, we will examine the facts and procedural history of the Board’s decision in the Matter of W-A-F-C-, its reasoning, and the effect of the new precedent decision going forward.

Facts and Procedural History: 26 I&N Dec. at 880-881

The respondent, a native and citizen of El Salvador, was 12 years old when he entered the United States in June of 2015. Upon entry, it was determined that the respondent was an “unaccompanied alien child.” The DHS issued the respondent a notice to appear on the same day that he entered the United States, charging him with inadmissibility, under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA), as an alien present in the United States without having been admitted or paroled.

In removal proceedings in February of 2016, the respondent moved to terminate the proceedings, arguing that the service of the notice to appear was deficient. The DHS opposed the motion. However, the Immigration Judge (IJ) granted the motion and terminated proceedings, concluding that the DHS had not complied with the regulatory requirements for serving a notice to appear on a minor who is under the age of 14.

The DHS appealed the IJ’s decision to terminate proceedings to the BIA.

Issue: 26 I&N Dec. at 880-881

There are special regulatory requirements for the service of a notice to appear upon a minor who is under the age of 14. Under 8 C.F.R. 103.8(c)(2)(ii) (2016), the notice to appear “shall be made upon the person with whom the … minor resides.” The Board adds in footnote that 8 C.F.R. 103.8(c)(2)(ii) states that, whenever possible, the service “shall also be made on the near relative, guardian, committee, or friend.”

On appeal, the DHS did not dispute that its initial service of the notice to appear was deficient. Rather, the DHS disagreed with the IJ’s decision to terminate proceedings based on the deficient service of the notice to appear, instead arguing that it should have another opportunity to properly serve the notice to appear in accordance with the applicable regulations. Specifically, the DHS argued that the IJ erred in terminating proceedings based on the deficient notice without requiring the respondent to demonstrate that he was prejudiced by the deficient notice. The DHS further argued that the deficiency in the service of the notice to appear had been remedied when it had re-served the respondent’s mother and counsel with the notice to appear. Conversely, the respondent’s position was that the IJ had been correct in terminating proceedings.

For the reasons that we will examine in the subsequent section, the Board ruled in favor of the DHS, and it granted a continuance of proceedings to allow the DHS to effect the proper service of the notice to appear.

Analysis and Decision: 26 I&N Dec. at 881-883

The Board began by noting that “[i]t is undisputed that the DHS did not properly serve the notice to appear on the respondent.” Citing to the Matter of E-S-I-, 26 I&N Dec. 136, 141 (BIA 2013), the Board stated that the DHS should have served the notice to appear on the person with whom the respondent resided at the time of the service in accordance with 8 C.F.R. 103.8(c)(2)(ii). The Board cited to its precedent decision in the Matter of Mejia-Andino, 23 I&N Dec. 533, 536 (BIA 2002) [PDF version], where it held that. if it appears that a minor will reside with his or her parent or guardian in the United States, it is required that the parent or guardian be served with the notice to appear.

In the instant case, the Board noted that there was no signature on the notice to appear reflecting that it was served on the respondent or on some other individual. The Board was left to consider whether the IJ was correct in terminating proceedings based on this defective notice. It notes that the DHS “asserts that the [IJ’s] decisions does not recognize that [the DHS] cured the defective service by mailing a copy of the notice to appear to the respondent’s counsel and mother in February 2016-2 days after the respondent first raised the issue of improper service.”

The Board noted that the respondent did not address whether his mother or counsel received the notice to appear. However, the Board stated that the record showed that the DHS had made “requests and efforts” to re-serve the notice to appear, and that the respondent and his counsel had appeared at both of the master calendar hearings on the dates specified in the notice to appear. Because of the facts, the Board found that the situation in the instant case was distinguishable from that in the Matter of Mejia-Andino. The Matter of Mejia-Andino concerned the service of the notice to appear to a 7-year old minor who did not appear at two hearings. In that case, the Board upheld the IJ’s decision to terminate proceedings “because there was no indication that the DHS made any effort to serve the notice to appear on the respondent’s parents, who apparently lived in the United States.”

In the instant case, the Board concluded that the IJ should have granted a continuance to give the DHS the opportunity to properly serve the notice to appear. In so doing, the Board followed its reasoning from the Matter of E-S-I-, a case regarding the service of the notice to appear to individuals who lacked mental competency. In the Matter of E-S-I-, the Board stated that “[i]f 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 the service of the notice to appear, the [IJ] should grant a continuance to give the DHS time to effect proper service.”

The IJ in the instant case had found the situation distinguishable from the that found in the Matter of E-S-I- because the DHS had already known the respondent’s age, and age is not a “variable condition” like mental competency. However, the Board did not find the IJ’s reasoning persuasive because in the Matter of E-S-I- the DHS had been aware of the respondent’s mental incompetency at the time of the service of the notice to appear just as DHS had known the respondent’s age in the instant case. In any event, the Board had reversed the IJ’s decision to terminate proceedings in the Matter of E-S-I-, finding that the DHS should be granted a continuance to properly serve the respondent on remand.

In light of the circumstances in the instant case, the Board opted to follow its decision in the Matter E-S-I- and held that the DHS should be granted another opportunity to properly serve the respondent with the notice to appear. Accordingly, the Board vacated the IJ’s decisions, reinstated removable proceedings, and remanded the record to the IJ. The Board instructed the IJ to assess whether the DHS had re-served the notice to appear in accordance with the pertinent regulations in 8 C.F.R. 103.8(c)(2)(ii), “and, if warranted, determine whether the DHS should be permitted to re-serve the notice to appear.”

The Board did not reach the DHS’s argument that the improper service of the notice to appear did not prejudice the respondent.

Conclusion

The Board’s decision means that, in certain cases where the DHS fails to properly effect service of a notice to appear on a minor alien, it may be granted a continuance of proceedings to properly serve the notice in accordance with the relevant regulations. The Board’s distinguishing of the Matter of W-A-F-C- from its precedent decision in the Matter of Mejia-Andino shows that sometimes the determination of whether the DHS will have a second chance to properly serve the notice to appear on a minor alien will depend on the specific facts of the case.

It is important for families and/or caretakers of unaccompanied alien children to consult with an experienced immigration attorney for an evaluation and for guidance on possible avenues to seek immigration relief and status in the United States.