4 F.4th 783
9th Cir.2021Background
- As a minor, B.R. accumulated California juvenile records indicating he was born in Mexico; DHS detained him in October 2010, prepared I-213 forms, and served a Notice to Appear (NTA).
- DHS released B.R. to his mother in March 2011 but never served the mother with the NTA as Flores-Chavez requires for minors released from custody.
- B.R. later was convicted of a federal drug offense, failed to appear while incarcerated and was ordered removed in absentia; proceedings were reopened in 2017 and he obtained counsel.
- B.R. moved to suppress three I-213s on the ground they derived from his confidential juvenile records (alleged regulatory/Fourth Amendment violations); DHS then produced a Mexican birth certificate and a sealed presentence investigation report as supplemental alienage proof.
- The IJ assumed the I-213s might be tainted but concluded the supplemental documents were independent and denied suppression; the BIA adopted the IJ.
- The Ninth Circuit: (1) upheld the presumption that B.R. was personally served; (2) held defective service on a custodian can be cured if perfected before substantive proceedings and B.R. showed no prejudice; (3) found the IJ erred by not adequately considering specific evidence that the birth certificate might be tainted and remanded for the government to rebut taint; and (4) denied CAT relief for lack of government acquiescence evidence.
Issues
| Issue | Plaintiff's Argument (B.R.) | Defendant's Argument (Garland/DHS) | Held |
|---|---|---|---|
| Personal service of NTA | B.R. says he never received a copy despite signing certificate; service invalid | Certificate and practice rebut presumption; court may presume officers discharged duties | Presumption of regularity not rebutted; substantial evidence supports personal service |
| Service on custodian under Flores-Chavez; jurisdiction | DHS failed to serve mother at release; Flores-Chavez requires instantaneous service that cannot be cured | Flores-Chavez requires notice to custodian but not necessarily at the instant of release; cure permitted if perfected before substantive hearings | Flores-Chavez does not impose an uncureable temporal requirement; defective service may be cured if no prejudice; DHS cured by serving B.R./counsel before substantive proceedings |
| Termination for egregious regulatory violation / prejudice | Seven-year delay in serving custodian prejudiced access to time-sensitive relief (SIJS/asylum) and warrants termination | No prejudice shown: B.R. appeared at hearings, had opportunity to litigate, and remained able to seek SIJS/asylum within statutory windows | No termination; Sanchez factors not met—regulatory violation existed but no showing of prejudice or conscience-shocking conduct |
| Suppression of alienage evidence (taint / burden) | I-213s (and birth certificate) derived from confidential juvenile records and thus tainted; birth certificate not independent | Supplemental documents are identity-based and therefore independent; presentence report is public/independent | IJ abused discretion by ignoring B.R.’s specific evidence that the birth certificate was tainted; remand for DHS to rebut taint; presentence report likely independent but court expressed concerns about how it was obtained and declined to rely on it alone |
| CAT relief | Risk of torture by relatives/cartels and possible government acquiescence merits deferral | Record lacks evidence that Mexican authorities would acquiesce in torture of B.R. | Substantial evidence supports denial of CAT relief; generalized country reports insufficient to show government acquiescence |
Key Cases Cited
- Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004) (agency must serve NTA on adult custodian of minor released from DHS custody)
- Sanchez v. Sessions, 904 F.3d 643 (9th Cir. 2018) (termination remedy when regulatory violation is egregious and prejudicial)
- INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (admissibility of evidence obtained independently of suppressible evidence)
- Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020) (defective NTA may be cured by later provision of complete notice)
- Perez Cruz v. Barr, 926 F.3d 1128 (9th Cir. 2019) (Fourth Amendment exclusionary rule generally limited in immigration proceedings)
- Cole v. Holder, 659 F.3d 762 (9th Cir. 2011) (agency must give reasoned consideration to dispositive testimony and documentary evidence)
- United States v. Orozco-Rico, 589 F.2d 433 (9th Cir. 1978) (identity evidence may lead legitimately to the official file as an independent source)
- INS v. Ventura, 537 U.S. 12 (2002) (per curiam) (courts should not supply findings the agency has not made; remand appropriate when agency relied on contested evidence)