26 I. & N. Dec. 880
BIA2016Background
- Respondent: 12-year-old Salvadoran who entered the U.S. as an unaccompanied alien child on or about June 16, 2015; DHS issued a notice to appear (NTA) the same day charging inadmissibility under INA § 212(a)(6)(A)(i).
- DHS’s attempted service of the NTA did not comply with the regulation governing service on minors under 14, which requires service on the person with whom the minor resides (and, when possible, a near relative/guardian).
- At a February 17, 2016 master calendar hearing the respondent moved to terminate for defective service; the Immigration Judge granted the motion and terminated proceedings on March 21, 2016.
- DHS conceded the service was deficient but argued the IJ should have required a showing of prejudice and that DHS had cured the defect by re-mailing the NTA to respondent’s mother and counsel in February 2016 and offering personal service at the hearing.
- The Board concluded DHS had not properly served the minor but that, under governing BIA precedent, DHS should be given an opportunity to effect proper service; it vacated the IJ’s termination, reinstated proceedings, and remanded for the IJ to assess re-service and, if appropriate, allow DHS to re-serve.
Issues
| Issue | Respondent's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether defective service of the NTA on a minor under 14 required termination of proceedings. | Termination required because DHS failed to comply with service regulation for minors under 14. | IJ should not terminate without first requiring respondent to show prejudice; DHS had attempted to cure by re-mailing NTA to mother and counsel and offering personal service. | Vacated termination; remand for DHS to be given opportunity to effect proper service rather than immediate termination. |
| Whether DHS’s subsequent mailing to mother/counsel cured the initial defective service. | Not addressed in detail on appeal; relies on defective initial service. | Mailing and offer to serve parent/counsel cured defect. | Board did not find cure established on record; remand directed to determine whether re-service complied with regulation. |
| Whether a continuance should be granted to permit corrective service where service was defective and respondent is a minor. | Respondent favored termination instead of continuance. | DHS argued it should be allowed to re-serve and IJ should grant continuance rather than terminate. | Continuance/remand appropriate under BIA precedent (Matter of E-S-I-): DHS should be afforded another opportunity to effect proper service. |
| Whether DHS must show prejudice from defective service before proceedings can be reinstated. | Respondent maintained termination appropriate without showing prejudice. | DHS argued IJ erred by not requiring prejudice showing before terminating. | Board did not reach prejudice question, remanding to allow proper service opportunity first. |
Key Cases Cited
- Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013) (where service defective and competency issues appear, IJ should grant continuance to allow DHS to effect proper service)
- Matter of Amaya, 21 I&N Dec. 583 (BIA 1996) (service on head of institution satisfies requirement when minor detained in facility)
- Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002) (service on parent required when minor will be residing with parents; termination upheld where DHS made no effort to serve parents)
- Matter of Cubor, 25 I&N Dec. 470 (BIA 2011) (requirements for service on minors aged 14–18 contrasted with those under 14)
- Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004) (if minor under 18 is released into adult custody, NTA should be served on that adult)
- Matter of Hernandez, 21 I&N Dec. 224 (BIA 1996) (IJ may take corrective action short of termination when Government violates service regulations)
- Matter of M-J-K-, 26 I&N Dec. 773 (BIA 2016) (discussing continuances for service of NTA under Matter of E-S-I-)