26 I. & N. Dec. 136
BIA2013Background
- Respondent Nigerian citizen and LPR; notice to appear issued 1/13/2009 charging removability for aggravated felony; respondent detained; DHS argued incompetency and improper service; IJ terminated proceedings in 9/2010 for improper service; BIA panel affirmed termination; DHS later issued new notice 3/11/2011; IJ terminated again for lack of competency and improper service; issue whether service complied with 8 C.F.R. § 103.8(c)(2) for incompetents; Board remands to apply updated interpretation of service rules; record shows contested service on a facility official and a relative claimed by DHS; remand ordered to permit proper service under new standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service complied with 8 C.F.R. § 103.8(c)(2)(i) for confined incompetents. | DHS argues appropriate service on the person in charge suffices. | Ruehle contends the warden/appropriate official was not properly served. | Not satisfied under this record; remand needed to apply correct standard. |
| Whether service complied with 8 C.F.R. § 103.8(c)(2)(ii) for all incompetents. | DHS served a nearby relative and an alleged cousin to fulfill the requirement. | Ruehle argues the cousin/near relative and facility staff were insufficient or improperly identified. | Record inadequate to confirm proper service; remand required. |
| Whether service on a non-confined incompetent requires service on a person with whom the incompetent resides and a near relative. | DHS should still follow 103.8(c)(2)(ii) to serve near relative and person with whom he resides. | Ruehle contends different application given non-confined status. | Rule requires service on a person with whom the incompetent resides; remand to verify. |
| Whether DHS should be granted a continuance to effect proper service when indicia of incompetency appear later. | DHS may need additional time to re-serve. | Ruehle favors timely progress if service is improper. | Remand appropriate to assess need for continuance. |
Key Cases Cited
- Matter of Mejia-Andino, 23 I&N Dec. 522 (BIA 2002) (adult relative bears responsibility to assure appearance; service on relative supported where appropriate)
- Matter of Amaya, 21 I&N Dec. 583 (BIA 1996) (service on director of an institution affirmed where respondent detained in custodial setting)
- Matter of Casillas-Topete, 25 I&N Dec. 317 (BIA 2012) (recognizes authority delegation to appropriate immigration officials; service on institution's head or delegate)
- Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011) (mental competency service regulations context; sets framework for incompetency cases)
- Nolasco v. Holder, 637 F.3d 159 (2d Cir. 2011) (courts defers to DHS practice for service where facts show appearance with counsel)