Nolasco v. Holder
637 F.3d 159
2d Cir.2011Background
- Nolasco, a Salvadoran nine-year-old, was served a Notice to Appear while in DHS custody on April 13, 2006.
- The NTA alleged unlawful presence; the family moved venue to Hartford, Connecticut, and Petitioner appeared with counsel in November 2006.
- Petitioner admitted the NTA allegations and conceded removability; she and her parents pursued asylum and withholding of removal.
- In March 2008, the IJ denied asylum and ordered removal; the BIA summarily affirmed without opinion.
- In December 2009, Petitioner moved for reconsideration arguing improper NTA service under 8 C.F.R. § 103.5a(c)(2)(ii); the BIA denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NTA service on a minor and fundamental rights | Nolasco contends service violated 103.5a(c)(2)(ii) and implicated fundamental rights. | DHS contends notice was provided and due process satisfied; technical service defect did not violate fundamental rights. | No fundamental-right implication; no prejudice shown; service defect did not require remand. |
| Prejudice from service defect | Defect prejudiced Petitioner's ability to defend or participate meaningfully. | Actual notice to Petitioner and parents rendered the defect harmless. | Petitioner failed to show prejudice; remand not warranted. |
| Waiver and consideration on merits | Issue should be considered despite waiver arguments. | Waiver applies, but court declines and nonetheless addresses merits. | Court exercises discretion to reach merits; no reversible error found. |
| Abuse of discretion in denial of motion to reconsider | BIA abused its discretion by denying reconsideration. | BIA properly denied reconsideration under abuse-of-discretion standard. | BIA did not abuse discretion; petition denied. |
Key Cases Cited
- Waldron v. I.N.S., 17 F.3d 511 (2d Cir. 1993) (remand for regulatory defect only if prejudice or fundamental rights at stake)
- Ali v. Mukasey, 524 F.3d 145 (2d Cir. 2008) (due process and regulatory compliance; prejudice analysis)
- Pierre v. Holder, 588 F.3d 767 (2d Cir. 2009) (core due process rights in immigration proceedings: notice and opportunity to be heard)
- Li Hua Lin v. U.S. Dep't of Justice, 453 F.3d 99 (2d Cir. 2006) (due process standards and notice requirements in removal proceedings)