B. R. v. Merrick GarlandB. R. v. Merrick Garland
ORDER AND OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted February 9, 2021 San Francisco, California
Filed February 23, 2022
SUMMARY**
Immigration
The panel filed: 1) an order granting Respondent‘s petition for panel rehearing, withdrawing the opinion filed July 12, 2021, replacing that opinion with a superseding opinion, and denying as moot the petition for rehearing en banc; and 2) a superseding opinion denying in part and granting in part B.R‘s petition for review of a decision of the Board of Immigration Appeals, and remanding. In the superseding opinion, the panel held that 1) substantial evidence supported the agency‘s conclusion that B.R. was properly served a copy of his Notice to Appear (“NTA“); 2) the Department of Homeland Security (“DHS“) later cured its initial failure to serve the NTA on B.R.‘s custodian when he was released from detention as a minor; 3) the agency erred by failing to credit or discredit B.R.‘s specific evidence that the governmеnt‘s evidence of alienage was tainted by violations of his rights; and 4) the evidence did not compel reversal of the agency‘s denial of protection under the Convention Against Torture.
As to the issue of personal service, the panel concluded that B.R.‘s declaration stating that he did not remember receiving a copy of the NTA fell far short of the evidence needed to rebut the presumption of proper personal service. As to the issue of service on B.R‘s custodian (his mother), B.R. relied Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), which held that DHS must provide service of an NTA on the custodians of juvenile aliens released from custody. The parties agreed that, after releasing B.R. from its custody, DHS never served the NTA on his custodian and that, under Flores-Chavez, DHS‘s original NTA service was thus insufficient. However, the parties disputed whether the error was fatal to DHS‘s efforts to remove B.R.
As a general matter, the panel held that, absent a showing of prejudice, improper service of an NTA can be cured. The panel explained that the statute does not require notice at a particular moment and that nothing in the statute or regulations requires termination in this context. The panel also considered Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020), where the court addressed the similar issue of the service of a defective NTA. There, the court held that the remedy is to provide DHS an opportunity to cure the defect in the NTA rather than to order termination. The panel concluded that it logically proceeds that the remedy for improper service of an NTA is for proper service to be provided at a later time, provided the alien is not prejudiced. B.R. argued that a different rule exists for minors released from DHS custody. The panel rejected that contention, explaining that Flores-Chavez does not require DHS to serve an NTA upon a minor alien‘s custodian at the very moment the alien is released from its custody. Here, the panel held that DHS cured the defective service by later properly serving a copy of the NTA on B.R.‘s counsel, after B.R. became an adult, and before substantive proceedings had commenced. Therefore, the panel concluded that regardless whether DHS‘s improper service failed to vest the immigration court with jurisdiction initially, the immigration court had jurisdiction throughout all of B.R.‘s substantive removal proceedings subsequent to DHS‘s perfection of service on B.R.
B.R. also argued that DHS‘s failure to serve B.R.‘s mother and the seven-year gap between that initial failure and its perfection were egregious regulatory violations requiring termination. Because the agency failed to address this argument below, the panel remanded to the agency to consider whether DHS committed an egregious regulatory violation and whether the violation prejudiced B.R.
As to the question of alienage, the panel explained that DHS initially submitted three I-213 (Record of Deportable/Inadmissible Alien) forms to meet its burden of establishing alienage. B.R. moved to suppress, claiming the forms had been created using his juvenile court records, in violation of California privacy laws and his constitutional rights. DHS then submitted supplemental evidence of alienage: a Mexican birth certificate and a presentence investigation report. The IJ assumed that B.R. made out a prima facie case of a violation of federal regulations or his constitutional rights, but rather than following the normal burden shifting framework, the IJ addressed whether the supplemental evidence was obtained independently of the claimed unlawful act or of the I-213s, before B.R. moved to suppress the supplemental evidence based on taint.
The panel observed that the decision preemptively to find evidence to be independent of a suppressible violation may be a valid course in some circumstances, but not in these circumstances. Here, B.R. subsequently presented specific evidence that at least the birth certificate was itself the product of tainted evidence. However, the panel concluded that nothing in the record indicated that the agency seriously considered B.R.‘s evidence of taint; instead, it appeared that the agency arbitrarily ignored it and found the government‘s evidence free from taint. The panel concluded that this was error and an abuse of discretion. Therefore, the panel remanded with instructions to afford DHS the opportunity to rebut B.R.‘s evidence of taint.
The panel noted that B.R. never submitted specific evidence that DHS‘s presentence investigation report was tainted. Even so, the panel wrote that it had serious misgivings as to the propriety of the admission of the presentence investigation report that should be addressed on remand, including how DHS obtained the report when it was placed under seal by the federal district court.
Finally, the panel held that nothing in the record compelled the conclusion that the Mexican government would torture B.R. or acquiesce in his torture for purposes of CAT relief.
COUNSEL
Kristen Jackson (argued), Public Counsel, Los Angeles, California; Hayley Upshaw, San Francisco Public Defender‘s Office, San Francisco, California; for Petitioner.
Jennifer A. Bowen (argued), Trial Attorney; Andrew C. Maclachlan, Senior Litigation Counsel; Anthony C. Payne and John W. Blakeley, Assistant Directors; Brian M. Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Mark T. Roche, Baker & McKenzie LLP, San Francisco, California, for Amici Curiae Legal Services for Children, Children‘s Law Center of California, Law Foundation of Silicon Valley, and Pacific Juvenile Defender Center.
Nareeneh Sohbatian and Nimalka Wickramasekera, Winston & Strawn LLP, Los Angeles, California; Ashley A. Chung, Winston & Strawn LLP, Chicago, Illinois; Eimeric Reig-Plessis, Winston & Strawn LLP, San Francisco, California; for Amicus Curiae Catholic Legal Immigration Network, Inc. (Clinic).
Thomas R. Kreller, Linda Dakin-Grimm, and Mohammad Tehrani, Milbank LLP, Los Angeles, California, for Amicus Curiae Immigrant Legal Resource Center.
Respondent‘s petition for panel rehearing, Docket No. 81, is GRANTED without further oral argument. The Opinion filed July 12, 2021, and reported at 4 F.4th 783, is hereby WITHDRAWN and replaced with a superseding Opinion filed concurrently with this Order. The petition for rehearing en banc, Docket No. 81, is DENIED AS MOOT.
Future petitions for rehearing will be permitted under the deadlines outlined in
OPINION
BEA, Circuit Judge:
As a minor, petitioner B.R. had multiple run-ins with the law and accumulated a lengthy juvenile court record with the State of California—a record that states he was born in Mexico. B.R. soon came to the
B.R. now seeks review of the Board of Immigration Appeals’ (“BIA“) dismissal of his appeal from the Immigration Judge‘s (“IJ“) final order of removal and denial of his application for deferral of removal under the Convention Against Torture (“CAT“). He presents three main arguments. First, he claims DHS effected improper service of the NTA, thereby failing to vest the immigration court with jurisdiction, and that DHS should not have been permitted to cure that service violation. We reject and deny the claim with one small exception. The IJ is permitted to allow DHS to cure defective service without terminating proceedings, provided that the alien does not demonstrate that DHS‘s defective service prejudiced the alien‘s interests. Here, DHS cured its defеctive service prior to any substantive removal proceedings and B.R. demonstrated no prejudice from the delay. Our holding in Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), does not require DHS to serve an NTA upon a minor alien‘s custodian at the very moment the alien is released from its custody. We do remand, however, on B.R.‘s argument that DHS nevertheless committed an egregious regulatory violation under Sanchez v. Sessions, 904 F.3d 643 (9th Cir. 2018), by failing promptly to serve B.R.‘s custodian. Because the agency failed properly to address that claim in its rulings, and without expressing any opinion on that claim‘s merits, we remand so the agency can consider the claim properly, including whether the violation prejudiced B.R.
Second, B.R. contends the evidence DHS submitted to support its charge that B.R. was born in Mexico should be suppressed because DHS did not obtain the evidence independently of B.R.‘s confidential juvenile court records (records which he alleges DHS obtained in violation of California privacy laws and his constitutional rights). The exclusionary rule is generally not available in immigration proceedings, but we hold that once an alien makes a prima facie showing of an egregious regulatory or Fourth Amendment violation warranting suppression and submits specific evidence that the government‘s evidence is tainted, the government has the burden and opportunity to rebut that claim of taint. The IJ erred in failing to credit or discredit B.R.‘s specific evidence of taint. We grant B.R.‘s petition for review on this issue and remand for further development of the record.
Finally, B.R. argues the BIA erred in concluding he is not entitled to deferral of removal under CAT. In the interest of judicial economy, in the event DHS is able to prove B.R.‘s alienage on remand, we reject now his assignments of error as to his CAT claim. The generalized country reports upon which he exclusively relies would not compel any reasonable adjudicator to conclude that the Mexican government would torture or acquiesce in his torture from the various actors he identifies.
I. BACKGROUND
B.R., now twenty-six years old, has lived since childhood in California with his mother and siblings. As a juvenile, B.R. was arrested multiple times and accumulated a juvenile criminal record with the
On October 19, 2010, DHS detained sixteen-year-old B.R. and charged him with removability as an alien who is present in the U.S. without lawful admission or parole, pursuant to
Neverthеless, in compliance with the NTA, B.R. appeared at his first removal hearing in October 2011 at the age of seventeen. It was the only removal hearing B.R. attended as a minor, and it was continued so B.R. could find counsel. Twice more, in 2012 (after he turned eighteen), B.R. appeared at removal hearings without a lawyer. Both times he was granted continuances to find counsel. No pleadings were filed, no substantive issues were addressed, and no orders of removal were entered at these hearings.
In 2013, while immigration proceedings were still ongoing, B.R. (then nineteen) sold methamphetamine to an undercover federal officer. He was indicted on six federal charges of possession with intent to distribute but pleaded guilty to and was convicted only of one count of conspiracy to possess with intent to distribute methamphetamine and received a sixty-month sentence. While B.R. was in prison, he failed to appear at his removal hearing and was ordered removed in absentia. But in 2017, after learning B.R. had failed to appear because he was incarcerated, the IJ granted DHS‘s mоtion to reopen the proceedings.
In January 2018, B.R. (now represented by an attorney) moved to terminate proceedings on the ground that DHS failed to effectuate proper service in 2011 by failing to serve a copy of his NTA on B.R.‘s custodian (his mother) when he was released to her custody, which he argued was required for minor aliens pursuant to Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004). The IJ acknowledged that DHS‘s 2011 NTA service was improper under our Flores-Chavez rule, but denied the motion after concluding that DHS was permitted to perfect service by re-serving the NTA on then-adult B.R. The IJ noted DHS had done so by re-serving the NTA by mail on B.R.‘s counsel as an attachment to the agency‘s response to B.R.‘s motion.
In March 2018, B.R. filed a motion to suppress evidence and to terminate proceedings, in which he argued that the three I-213s that DHS had assembled and submitted as evidence of B.R.‘s alienage improperly relied on B.R.‘s confidential juvenile records—an act B.R. argued was a violation of his Fourth and Fifth Amendment
On April 6, 2018, the IJ denied the motion to suppress evidence and to terminate proceedings. The IJ refrained from deciding whether DHS had acted unlawfully with respect to B.R.‘s juvenile records in the preparation of the I-213s but assumed for purposes of analysis that DHS had indeed obtained information for the I-213s unlawfully. Sidestepping the merits, the IJ held that DHS‘s supplemental evidence (the Mexican birth certificate and the district court presentence report) was obtained based on B.R.‘s identity alone, which, regardless of any alleged constitutional or regulatory violation, cannot be suppressed. Thus, the IJ found the supplementary evidence not suppressible and determined that DHS had proved B.R.‘s Mexican alienage by clear, unequivocal, and convincing evidence, even without the I-213s. The IJ then dismissed B.R.‘s motion to suppress the I-213s and to terminate removal proceedings as moot.
B.R. moved for reconsideration of that order, arguing that: (a) his due process rights were violated because the IJ admitted DHS‘s supplemental evidence without giving him adequate time to review and respond; (b) the supplemental evidence was not obtained independently of the I-213s or his state juvenile records and accordingly are tainted by the alleged constitutional violations; (c) the evidence was improperly authenticated; and (d) the presentence investigation report was sealed by the district court and improperly obtained and submitted by DHS. The IJ considered the motion as a form of reply to DHS‘s response and evidence, but denied the motion to reconsider and sustained the charge of removability against B.R.
As to relief from removal, B.R. conceded he was not eligible for asylum or withholding of removal. B.R.‘s only application for relief was for deferral of removal under CAT. B.R. testified before the IJ (who did not make аn adverse credibility finding) that he is likely to experience future torture from a number of sources if removed to Mexico.
B.R. fears that his mother‘s uncle, who murdered B.R.‘s father over a land dispute in Jalisco, Mexico before he was born, might torture B.R. if he returns to Mexico. B.R. also has a number of tattoos, including one visible tattoo on his neck honoring his deceased father. He claims he fears that Mexican authorities might torture him based on the erroneous assumption that these tattoos are gang related.
B.R. also fears that he may be tortured in reprisal for his sister‘s testimony at his cousin‘s criminal trial. In 2009, B.R.‘s sister provided information to the police after she witnessed B.R.‘s cousin commit sexual assault. The cousin avoided arrest by fleeing to Mexico where he became involved with the New Generation Jalisco Cartel, a notable drug cartel located in Jalisco, Mexico. While in Mexico, the cousin sent threatening messages to B.R. and his sister. The cousin later returned to the U.S., where he was arrested and convicted of the 2009 sexual assault, for which B.R.‘s
Finally, B.R. fears retribution from the drug supplier he had identified to the Drug Enforcement Agency. B.R.‘s drug supplier had bragged that his (the supplier‘s) father was involved in the La Familia Michoacána drug cartel in Mexico.
On August 21, 2018, the IJ denied B.R.‘s application for CAT relief and ordered B.R. removed to Mexico.3 The IJ found that B.R. failed to establish a likelihood that he would be tortured from the identified sources and that B.R. had also failed to show that any torture would occur by or with the consent or acquiescence of the Mexican government.
On appeal, the BIA affirmed and adopted the IJ‘s decisions.4 B.R. timely petitioned us for review of the BIA‘s order affirming the IJ‘s: (1) March 6, 2018 denial of B.R.‘s motion to terminate; (2) April 6, 2018 denial of B.R.‘s motion to suppress and terminate proceedings; (3) April 17, 2018 denial of B.R.‘s motion to reconsider and objection to DHS‘s supplemental alienage evidence; and (4) August 21, 2018 denial of B.R.‘s CAT claim. We have jurisdiction to
review the final order of removal under
II. STANDARD OF REVIEW
This court reviews the agency‘s “purely legal determinations de novo.” Flores-Chavez, 362 F.3d at 1155. “We review the agency‘s factual findings under the ‘extremely deferential’ substantial-evidence standard, under which we treat such findings as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.‘” Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th Cir. 2020) (quoting Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003);
We review the denial of a motion to reconsider for abuse of discretion. Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004). “The BIA abuses its discretion when it acts arbitrarily, irrationally, or contrary to the law, and when it fails to provide a reasoned explanation for its actions.” Tadevosyan v. Holder, 743 F.3d 1250, 1252–53 (9th Cir. 2014) (internal quotation marks and citations omitted).
III. DISCUSSION
A. NTA Service
B.R.‘s first set of arguments relate to DHS‘s service of the NTA. He argues that: (1) DHS failed to effect proper personal service of the NTA in 2010; (2) DHS failed to effect proper service on his mother as Flores-Chavez requires; and (3) DHS‘s improper service was an egregious regulatory violation requiring termination of removal proceedings. We reject the first two arguments and remand on the third.
B.R. claims that, despite his signature on the NTA certificate of service, DHS did not effect personal service on him in accordance with
This court applies a presumption of regularity to the service of an NTA and will presume “[i]n the absence of clear evidence to the contrary . . . that public officers properly discharge their duties.” Kohli v. Gonzales, 473 F.3d 1061, 1068 (9th Cir. 2007) (quotation marks and citation omitted). B.R. signed the NTA‘s certificate of service, and we may presume the officer then provided him with a copy. B.R. supplied no evidence to rebut this presumption beyond his own declaration, which states that he does not “remember” receiving a copy. On its own, a declaration simply refuting personal service is insufficient to overcome the presumption of regularity. See Sembiring v. Gonzales, 499 F.3d 981, 988–89 (9th Cir. 2007) (relying on corroborating circumstantial evidence beyond the alien‘s own statements to find the alien had overcome the presumption of regularity).
B.R. suggests his “unrefuted” declaration amounts to clear evidence rebutting the presumption because the government did not supply any evidence contradicting his version of events. That is not how presumptions work. The burden is on B.R. to provide “clear evidence” that contradicts a properly invoked presumption of regularity; DHS need not respond unless or until he has done so. B.R.‘s declaration falls far short of the evidence needed to rebut the presumption of regularity, and DHS‘s decision to rest on the presumption does not elevate an insufficient declaration to “clear evidence.” Substantial evidence supports the conclusion that B.R. was properly served a copy of the NTA.
2. Defective Service and Cure Under Flores-Chavez
In Flores-Chavez, we construed DHS detention and release regulations to require that DHS provide additional service of an NTA on the custodians of all juvenile aliens who are released from DHS custody. 362 F.3d at 1163. In that case, DHS had served an NTA on Flores-Chavez, a fifteen-year-old alien in its custody but did not serve the NTA on the adult to whom he was later released. Id. at 1153. Subsequently, Flores-Chavez failed to appear at his removal proceedings and was ordered removed in absentia. Id. at 1154. The agency denied Flores-Chavez‘s motion to reopen proceedings based on improper service because DHS‘s general notice provisions required additional service only on adult custodians of minor aliens fourteen-years-old or younger. Id. (citing
but on DHS‘s detention and release
Here, the parties agree that, after releasing B.R. from its custody, DHS never served the NTA on B.R.‘s custodian (his mother) and that, under Flores-Chavez, DHS‘s original NTA service was thus insufficient. The dispute lies in whether this error is fatal to DHS‘s efforts to remove B.R. The agency deemed DHS‘s initial service improper but permitted DHS to re-serve the NTA on the then-adult B.R.‘s attorney, curing the violation by perfecting service before any hearings were held at which substantive matters were treated. B.R. argues that the agency erred because, under Flores-Chavez, DHS‘s failure to serve B.R.‘s mother at the moment he was released to her is an error that cannot be cured and permanently deprives the immigration court of jurisdiction over B.R.‘s removal proceedings. Thus, he suggests, we should order the BIA “to dismiss removal proceedings for lack of jurisdiction.”
Reviewing the matter de novo, we hold that improper service of an NTA on a minor alien released from DHS custody can be cured if DHS later perfects service before substantive removal proceedings begin. Therefore, regardless whether DHS‘s improper service in 2010 failed to vest the immigration court with jurisdiсtion initially, the immigration court had jurisdiction throughout all of B.R.‘s
substantive removal proceedings subsequent to DHS‘s perfection of service on B.R. in 2018.
Before addressing B.R.‘s Flores-Chavez argument, we hold as a general matter that, absent a showing of prejudice, improper service of an NTA can be cured and is not fatal. The statute does not require notice to be provided at any particular moment. Instead, the statute states only that: “In removal proceedings under section 1229a of this title, written notice (in this section referred to as a ‘notice to appear‘) shall be given in person to the alien . . . .”
B.R. concedes as well that we have “not yet held that improper NTA service requires termination of removal proceedings.” Indеed, we have not. But we have considered the similar issue of the service of a defective NTA (as opposed to improper service of an otherwise valid NTA) and came to a conclusion opposite to the one B.R. proposes here.
In Aguilar Fermin v. Barr, we held that the remedy for service of a defective NTA is to provide DHS an opportunity to cure the defect in the NTA rather than to order termination of removal proceedings. 958 F.3d 887 (9th Cir. 2020). There, DHS had served the petitioner with an NTA that was missing the location where her proceedings were to take place—information required for the NTA to be valid under
BIA‘s interpretation of the regulation and concluded that the “appropriate remedy” for service of the defective NTA was for DHS to provide the alien “with the complete notice at a later time.” Id. at 895. In other words, service of a defective NTA “can be cured and is not fatal.” Id. Given no statutory or regulatory provision requires otherwise, we think it logically proceeds that the remedy for improper service of an NTA is for proper service to be provided at a later time, provided the alien is not prejudiced by the delay.
In holding that defective service may be cured absent prejudice, we align ourselves with the BIA, which has already concluded that the remedy for improper service of an NTA is generally to postpone proceedings until DHS is able to perfect and cure defective service. In Matter of W-A-F-C-, the IJ terminated proceedings after DHS had failed to serve the NTA on the person with whom the minor alien resided in accordance with the regulatory requirements for serving minors under the age of fourteen. 26 I. & N. Dec. 880, 880 (BIA 2016). The BIA reversed, holding that when DHS makes an effort to re-serve, “DHS should be given an opportunity to effect proper service” without termination of proceedings.6 Id. at 882. Matter of W-A-F-C- built on a prior BIA holding in Matter of E-S-I-, where, despite indicia that the alien was incompetent, DHS failed to serve the alien in accordance with the regulatory requirements for incompetents. 26 I. & N. Dec. 136, 145–46 (BIA 2013).
Rather than require termination of proceedings, the BIA remanded and ordered that the IJ “grant a continuance to give . . . DHS time to еffect proper service.” Id.
We look to the statute and regulations to determine DHS‘s obligations. We see no reason to burden the government‘s efforts in enforcing immigration laws by judicially mandating service of charging documents on all aliens be perfect on the very first attempt absent statutory or regulatory language so requiring. As written, the function of the service requirement is to provide notice to the alien of his removal proceedings, not to delay interminably proceedings with unnecessary, do-or-die procedural hurdles. The service requirement performs that function so long as the government properly served notice on the alien before a hearing on substantive matters, regardless whether service occurs on the first attempt or by subsequent cure.
But regardless whether service may be cured generally, B.R. argues a different rule exists for minors released from DHS custody. B.R. claims that under our holding in Flores-Chavez, DHS is required to effect proper service at the time a minor is released and may not cure defective service at some later time or date. To support that contention, B.R. relies on this phrase from our opinion:
[W]hen [DHS] releases a minor alien to an adult‘s custody pursuant to
8 C.F.R. § [236.3] , thereby making that adult responsible for the minor‘s future appearance at immigration proceedings, the agency must serve notice of the minor‘s rights and responsibilities upon that adult if the minor is under eighteen.
Flores-Chavez, 362 F.3d at 1163 (emphasis added). Thus, he argues, we established a temporal limitation that requires proper service the moment the minor is released,
B.R. misreads our opinion. In that passage we used the word “when” as a preface to a condition, not as a temporal requirement on service. Our analysis in Flores-Chavez spends considerable time differentiating the general service requirements for minor aliens under
B.R. also forwards a public policy argument: that unless we require DHS to serve the guardian at the moment of release, DHS could strategically delay service to the guardian to circumvent the special protections for minors described in Flores-Chavez. We are not persuaded. These notice protections exist to place minors on equal footing with adults. See Flores-Chavez, 362 F.3d at 1157, 1160. Once an adult, an alien no longer needs such protections. Indeed, absent some type of disability, physical or mental, an adult alien is in a better situation to protect his own interests than a minor alien, who must rely оn third parties or guardians. Even if we were swayed by B.R.‘s public policy arguments, DHS could simply delay service of an NTA and commence removal proceedings once the alien turns eighteen. See Cortez-Felipe v. INS, 245 F.3d 1054, 1057 (9th Cir. 2001) (DHS has unreviewable “discretion regarding when and whether to initiate deportation proceedings.). In contrast, we are much more wary of following B.R.‘s reasoning, where even a day‘s delay in service would grant the minor alien permanent immunity from removal.
To cure defective service, DHS re-served the NTA on then-adult B.R., but B.R. here complains that DHS again did not serve notice on B.R.‘s mother. We hold that DHS need not have served B.R.‘s mother after he turned eighteen and that DHS properly perfected service by mailing the NTA to B.R.‘s attorney.7 Once B.R. turned eighteen, he was no longer entitled to the protections of Flores-Chavez, which are premised on the idea that “no minor alien under age eighteen should be presumed responsible for understanding his rights and responsibilities in preparing for and appearing at final immigration proceedings.” 362 F.3d at 1157. Re-service should conform to DHS regulations that aрply to the alien at the time of the service. Here, DHS re-served the NTA on B.R. prior to any substantive proceedings
In sum, we hold that IJs do have authority to allow DHS to cure improper service of an NTA without requiring termination of proceedings, that Flores-Chavez did not create a temporal requirement that DHS serve a minor alien‘s custodian immediately upon release, and that DHS did properly perfect service on B.R. here. The immigration court had jurisdiction over B.R.‘s removal proceedings.
3. Whether B.R. Is Entitled to Termination of Proceedings as a Result of a Prejudicial Regulatory Violation
In holding that DHS may cure defective service to avoid violating
B.R. argues that, even if DHS is permitted to cure defective service, its initial failure to serve B.R.‘s mother in accordance with Flores-Chavez‘s interpretation of
The agency, however, did not address B.R.‘s egregious regulatory violation argument below. To be sure, the agency did address B.R.‘s claims that DHS failed personally to serve him and that DHS violated Flores-Chavez by failing to serve an adult responsible for B.R. when B.R. was released from custody. But whether DHS “cured” its violation of Flores-Chavez or “perfected service” upon B.R. after originally serving him improperly simply does not answer the question that Sanchez sets out: whether DHS committed a regulatory violation that was conscious-shocking, deprived B.R. of fundamental rights, or othеrwise prejudiced him. Sanchez, 904 F.3d at 655. Indeed, B.R. argues that DHS‘s Flores-Chavez violation prejudiced him even though DHS eventually served him properly. “[I]t goes without saying that IJs and the BIA are not free to ignore arguments raised by a petitioner,” Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005), so because the agency did not address B.R.‘s egregious regulatory violation argument, we grant B.R.‘s petition and remand to the agency for it to consider that particular argument. We leave the determination of whether DHS did in fact commit an egregious regulatory violation, including whether DHS prejudiced B.R., for the agency to determine in the first instance on remand.
B. Evidence of Alienage
B.R.‘s second main argument is levied against the evidence that DHS submitted to prove B.R.‘s alienage. DHS has the burden of proving alienage by “clear and convincing evidence.”
To resolve this motion to suppress, the IJ first assumed B.R. made out a prima facie case that the three I-213s were suppressible due to DHS‘s alleged unlawful actions. The IJ then observed that “identity evidence is never suppressible in civil removal proceedings.” Finally, the IJ concluded that, even under the assumption that the I-213s were suppressible, DHS had located and submitted B.R.‘s birth certificate and presentence investigation report using only B.R.‘s identity information, making the documents independent evidence of B.R.‘s alienage.
B.R. filed a motion to reconsider and objected to the new evidence, claiming that he was not granted sufficient time to review and respond and that DHS did not demonstrate that the supplemental alienage evidence was obtained independently of the alleged violation. B.R. presented new uncontested evidence that suggested that more than just his name was necessary to obtain a certified copy of his Mexican birth certificate—the ICE agent would also have needed his date of birth, names of his parents, or a unique population identification code. The IJ stated it would consider the motion to reconsider “to be a form of response” to the underlying motion to suppress, but denied the motion, finding the original order did not contain any errors of law or fact.
Because the IJ treated the motion to reconsider as part of the original briefing, we arе presented with a somewhat murky question as to our standard of review. We could arguably review de novo the IJ‘s order denying reconsideration alongside the order permitting DHS‘s supplemental evidence. See Martinez-Medina v. Holder, 673 F.3d 1029, 1033 (9th Cir. 2011) (“We review de novo the denial of a motion to suppress.“). We could also review under the abuse of discretion standard proper for motions to reconsider. Lara-Torres, 383 F.3d at 972. Here, since we find against the government under either standard, we will employ the abuse of discretion standard, which is more favorable to its position.
“As a general matter, the Fourth Amendment‘s exclusionary rule does not apply to immigration proceedings.” Perez Cruz v. Barr, 926 F.3d 1128, 1137 (9th Cir. 2019). “There are, however, two critical exceptions to this rule: (1) when the agency violates a regulation promulgated for the benefit of petitioners and that violation prejudices the petitioner‘s protected interests; and (2) when the agency egregiously violates a petitioner‘s Fourth Amendment rights.” Sanchez, 904 F.3d at 649 (internal citations omitted).
Under the Supreme Court‘s ruling in INS v. Lopez-Mendoza, evidence of alienage is admissible if it is obtained independently of, or sufficiently attenuated from suрpressible evidence. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1043 (1984); Sanchez, 904 F.3d at 653 & n.12. An alien‘s identity is not suppressible. Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1015 n.5 (9th Cir. 2008). Alienage evidence obtained using only an alien‘s identity is severed from any violation that may otherwise justify exclusion.
When reviewing whether evidence is tainted by a suppressible violation in the criminal sphere, we employ a burden-shifting framework. In that context, “[i]nitially, the defendant who shows that he was the victim of an unconstitutional search must go forward with specific evidence demonstrating taint. The burden then shifts to the government to show that it acquired its evidence from an independent source.” United States v. Cella, 568 F.2d 1266, 1284-85 (9th Cir. 1977) (citations omitted). We adapt that framework for our purposes here. Applied to the limited instances in which we recognize the availability of the exclusionary rule in immigration proceedings, if an alien establishes a prima facie case of an egregious regulatory or Fourth Amendment violation warranting suppression, the alien is then charged with providing specific evidence that each piece of allegedly suppressible government evidence is tainted by that unlawful act. Uрon that showing, the burden then shifts to the government to contest the alien‘s specific evidence of taint or otherwise show the government‘s allegedly tainted evidence is immune from suppression, including a demonstration that the evidence was obtained independently of or is sufficiently attenuated from the underlying unlawful act or evidence obtained therefrom.
Here, the IJ assumed for purposes of analysis that the information in the I-213s was obtained in violation of federal regulations or B.R.‘s constitutional rights. But DHS submitted supplemental evidence of alienage not at issue in B.R.‘s motion to suppress the I-213s. To suppress DHS‘s supplemental evidence, B.R. had the initial burden to demonstrate it was tainted by DHS‘s unlawful act. But the IJ acted out of turn. The IJ addressed whether the supplemental alienage evidence was obtained independently of the claimed unlawful act or of the I-213s before B.R. moved to suppress the supplemental evidence based on taint. The decision preemptively to find evidence to be independent of an alleged suppressible violation may be a valid course of action in some circumstances, but if the IJ is later presented with information contrary to IJ‘s assumptions, the IJ is required to give that evidence reasoned consideration.
B.R. subsequently presented specific evidence in his motion to reconsider that tended to prove that at least the birth certificate was not obtained independently of tainted evidence but was itself the product of tainted evidence. According to B.R.‘s evidence, DHS could not have obtained the birth certificate without using at least some of the information available to DHS only in B.R.‘s confidential juvenile court record, to wit his date of birth, the Mexican state in which he was born, his parents’ names, etc. That is specific evidence of taint, yet nothing in the record indicates that the agency seriously considered this evidence. Instead, it appears the agency arbitrarily ignored it and found the government‘s evidence free from taint. That is error and an abuse of discretion. Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011) (“[W]here potentially dispositive testimony and documentary evidence is submitted, the [agency] must give reasoned consideration to that evidence.“).
We are unable to conclude, based on the existing record evidence, that DHS obtained the birth certificate based on
Because “[a] successful prima facie showing of a regulatory violation for evidentiary suppression purposes . . . normally entitle[s] the petitioner to a remand for the government to rebut the petitioner‘s showing,” Sanchez, 904 F.3d at 653, we remand with instructions to afford DHS the opportunity to rebut B.R.‘s evidence of taint.9 We recognize that we have yet to plot out precisely what information about a person qualifies as his “identity.” Certainly, at least, the person‘s name. But certainly not his place of birth. Perez Cruz, 926 F.3d at 1136. To the extent necessary, the agency may examine in the first instance the finer grains of this issue as it relates to DHS‘s supplemental evidence.
We note, however, that B.R. never satisfied his burden to submit specific evidence that DHS‘s presentence investigation report was tainted. The presentence investigation report was created by a probation officer following B.R.‘s methamphetamine conviction and appears to be attenuated from any alleged unlawful act on the part of ICE or DHS. “The law of this Circuit is that there is no sanction to be applied when an illegal arrest only leads to discovery of the man‘s identity and that merely leads to the official file or other indepеndent evidence. The file can be used so far as relevant.” United States v. Orozco-Rico, 589 F.2d 433, 435 (9th Cir. 1978) (internal quotation marks and citation omitted). B.R.‘s conviction is a matter of public record and information contained within that official file is per se independent of any suppressible violation committed pursuant to unrelated immigration proceedings. B.R. has not provided any evidence that DHS uncovered his federal conviction by using information obtained from B.R.‘s unrelated California state juvenile criminal record.
Even so, we have serious misgivings as to the propriety of the admission of the presentence investigation report that should be addressed on remand, including how DHS obtained the presentence investigation report when it was placed under seal by the federal district court. Given
We grant the petition for review and remand for the agency to reopen proceedings consistent with this opinion, including, if necessary, examining the merits of B.R.‘s motion to suppress the I-213s.10
C. Convention Against Torture
Finally, in the interest of judicial economy, we examine the agency‘s denial of B.R.‘s application for protection under CAT in the event the government is able to prove B.R.‘s alienage on remand. B.R. attacks a number of the agency‘s legal and factual findings including, most crucially, the finding that B.R. failed to demonstrate any torture he is likely to suffer would occur with the acquiescence of the Mexican government or its officials. We conclude substantial evidence supported the agency‘s finding and deny the petition as to relief from removal.
In denying B.R. deferral of removal under CAT, the agency found that B.R. “failed to show that the Mexican government would acquiesce to the torture he fears,” an essential element to obtaining CAT relief. B.R. argues that this factual conclusion lacked substantial evidence for two main reasons. First, he argues that because American law enforcement officers have profiled B.R. as a gang member due to his tattoos (although B.R. stated he was profiled primarily “based on the people [he would] hang out with“), Mexican law enforcement might similarly profile him as a gang member and might torture him as a result. Second, he argues that the Mexican government sometimes colludes with cartels and is generally ineffective in deterring and prosecuting crime.
CAT protection cannot be granted unless an applicant shows a likelihood of torture that “is inflicted by or at the instigation of or with the consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity.”
First, B.R.‘s assertion that Mexican authorities themselves might torture him because they might believe his tattoos are gang related—despite the fact that he testified that his tattoos are not gang related—is, on this record, pure speculation. Blandino-Medina v. Holder, 712 F.3d 1338, 1348 (9th Cir. 2013). Second, he makes no effort to provide evidence that Mexican authorities would acquiesce to his torture at the hands of his uncle.
Finally, the agency‘s conclusion that B.R. failed to prove that the Mexican government would acquiesce in his torture at the hands of either the La Familia Michoacána drug cartel or the New Generation Jalisco Cartel is supported by substantial evidence. B.R. did not cite any direct evidence that the Mexican government or local Mexican officials are aware of and have acquiesced in any cartel plan to torture B.R. See Zheng v. Ashcroft, 332 F.3d 1186, 1194-95 (9th Cir. 2003). Instead, he relies only on generalized country reports and news clippings. The agency examined these reports and reasonably concluded that they do not establish that anyone in the Mexican government would acquiesce to B.R.‘s torture. Indeed, upon our own inspection, these reports suggest that, while on occasion some corrupt officials may turn a blind eye to cartel activity, the Mexican government, rather than being willfully blind to cartel violence and torture, actively combats and prosecutes cartel activity. While these troubling reports describe senseless, abhorrent violence throughout Mexico and a demoralizing ineffectiveness on the part of the Mexican government‘s genuine efforts to free its citizens from this terror, they do not prove that the Mexican government would acquiesce in the torture of its citizens at the hands of cartels. See Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“[A] general ineffectiveness on the government‘s part to investigate and prevent crime will not suffice to show acquiescence.“).
Nothing in the record would compel a reasonable adjudicator to conclude that the Mexican government would acquiesce in B.R.‘s torture. Because B.R. failed to satisfy this essential element, he is ineligible for CAT protection, and we need not address his remaining assignments of error. His petition for review as to his application for CAT protection is denied.
IV. CONCLUSION
For the reasons outlined above, the petition for review is GRANTED in part; DENIED in part; and REMANDED for further proceedings consistent with this opinion.