25 I. & N. Dec. 470
BIA2011Background
- Respondent Hilmer Leonel Cubor-Cruz, Guatemalan native and citizen, entered the United States in 2005 at age 17 and was placed in removal proceedings.
- In a 2006 decision, an Immigration Judge issued an in absentia order of removal after the respondent failed to appear for a scheduled hearing.
- The respondent filed a motion to reopen on August 31, 2010, seeking rescission of the removal order for lack of proper notice, which the IJ denied on September 21, 2010.
- The respondent contends that service of the Notice to Appear (Form I-862) was improper because his 17-year-old status required service on an adult guardian, not solely on him.
- The Board of Immigration Appeals affirmed dismissal of the appeal, holding that service on a minor 14 years or older is sufficient and there is no requirement to serve an adult guardian.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is service on a minor 14+ sufficient? | Cubor-Cruz argues service to the minor alone is insufficient. | Board argues service on the minor satisfies notice under 8 C.F.R. § 103.5a(c)(2)(ii). | Service on the minor is sufficient. |
| Should service be extended to an adult guardian for minors 14–17? | Flores-Chavez-style extension should apply to require guardian service. | Regulations do not require guardian service for minors 14–17. | Guardian service not required for minors age 14–17. |
| What governs the interpretation of service vs. release provisions? | Regulations are in conflict; need harmonization per Flores-Chavez. | Regulatory text governs; service provision controls at issue. | Regulation 8 C.F.R. § 103.5a(c)(2)(ii) governs service on minors and is controlling. |
Key Cases Cited
- Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004) (minors under 18 may be treated differently for notice; due process concerns acknowledged)
- Lopez-Dubon v. Holder, 609 F.3d 642 (5th Cir. 2010) (notice must be served on an adult for aliens under 14; consistent with BIA interpretation)
- Llapa-Sinchi v. Mukasey, 520 F.3d 897 (8th Cir. 2008) (recognizes regulatory interpretation allowing minors 14+ to be served without guardian)