E-S-I
Where the indicia of a respondent’s incompetency are manifest, the Department of Homeland Security (“DHS”) should serve the notice to appear on three individuals: (1) a person with whom the respondent resides, who, when the respondent is detained in a penal or mental institution, will be someone in a position of demonstrated authority in the institution or his or her delegate and, when the respondent is not detained, will be a responsible party in the household, if available; (2) whenever applicable or possible, a relative, guardian, or person similarly close to the respondent; and (3) in most cases, the respondent. - If the DHS did not properly serve the respondent where indicia of incompetency were either manifest or arose at a master calendar hearing that was held shortly after service of the notice to appear, the Immigration Judge should grant a continuance to give the DHS time to effect proper service.
- If indicia of incompetency become manifest at a later point in the proceedings and the Immigration Judge determines that safeguards are needed, he or she should evaluate the benefit of re-serving the notice to appear in accordance with
8 C.F.R. §§ 103.8(c)(2)(i) and(ii) (2013) as a safeguard.
FOR RESPONDENT: Walter H. Ruehle, Esquire, Rochester, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Amelia C. Anderson, Assistant Chief Counsel
AMICI CURIAE: Steven H. Schulman, Esquire; Michael M. Hethmon, Esquire, Washington, D.C.1
BEFORE: Board Panel: NEAL, Chairman; GREER, Board Member; KENDALL CLARK, Temporary Board Member.
GREER, Board Member:
In a decision dated December 7, 2011, an Immigration Judge found that the Department of Homeland Security (“DHS”) had not properly served the respondent with a notice to appear and that the respondent lacked
This case addresses the requirements for the DHS’s service of a notice to appear on individuals who lack mental competency. We conclude that the DHS has not established that the respondent was served in accordance with the standards we now set forth. We will therefore remand the record to allow the Immigration Judge to apply the regulations in compliance with our newly articulated interpretation of the regulations.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Nigeria who was admitted to the United States as a lawful permanent resident on October 22, 1980. On January 13, 2009, the DHS issued a notice to appear, charging the respondent with removability under
On March 11, 2011, the DHS issued a new notice to appear, and on December 7, 2011, the Immigration Judge terminated proceedings with prejudice, in part because the DHS again did not properly serve the respondent. The Immigration Judge found that the respondent lacked the requisite competency to participate in immigration proceedings and that the DHS had not served the respondent in conformance with the regulatory requirements for serving persons who lack competency.
On appeal, the DHS argues that the Otay Mesa Detention Facility, where the respondent was confined at the time the notice to appear was served, was not a “penal or mental institution or hospital” and that service of the notice to appear pursuant to
The respondent argues that the Immigration Judge properly terminated proceedings for lack of proper service because the DHS did not comply with either
II. ISSUE
The issue in this case is whether the DHS’s service of the notice to appear on the respondent met the requirements for proper service on individuals who lack mental competency.3
III. STATUTORY AND REGULATORY AUTHORITY
The DHS initiates removal proceedings by serving written notice―the notice to appear―on a respondent.
The regulations provide further guidance about the service of documents such as the notice to appear on persons who lack mental competency. See generally Matter of M-A-M-, 25 I&N Dec. 474, 478 (BIA 2011). Specifically, under the regulations, the manner of service of persons who lack mental competency turns on whether or not they are confined.
Persons confined, minors, and incompetents—(i) Persons confined. If a person is confined in a penal or mental institution or hospital and is competent to understand the nature of the proceedings initiated against him, service shall be made both upon him and upon the person in charge of the institution or the hospital. If the confined person is not competent to understand, service shall be made only on the person in
charge of the institution or hospital in which he is confined, such service being deemed service on the confined person.
(ii) Incompetents and minors. In case of mental incompetency, whether or not confined in an institution, and in the case of a minor under 14 years of age, service shall be made upon the person with whom the incompetent or the minor resides; whenever possible, service shall also be made on the near relative, guardian, committee, or friend.
IV. ANALYSIS
A. Service on Mentally Incompetent Persons Who Are Confined in a Penal or Mental Institution
We first consider appropriate service on incompetent persons who are confined in a penal or mental institution or hospital. The regulation provides that “[i]f the confined person is not competent to understand, service shall be made only on the person in charge of the institution or the hospital in which he is confined, such service being deemed service on the confined person.”
“When interpreting statutes and regulations, we look first to the plain meaning of the language and are required to give effect to unambiguously expressed intent.” Matter of Figueroa, 25 I&N Dec. 596, 598 (BIA 2011); see also McNeill v. United States, 131 S. Ct. 2218, 2221 (2011); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984); Matter of F-P-R-, 24 I&N Dec. 681, 683 (BIA 2008). Intent is presumed to be expressed by the ordinary meaning of the words used. Matter of Figueroa, 25 I&N Dec. at 598; see also INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). We also construe a statute or regulation to give effect to all of its provisions. Matter of E-L-H-, 23 I&N Dec. 814, 823 (BIA 2005); Matter of Masri, 22 I&N Dec. 1145, 1148 (BIA 1999). However, the regulation that specifically addresses the issue at hand is controlling. Matter of Cubor, 25 I&N Dec. 470 (BIA 2011).
In this case, we find no ambiguity in the requirement of
We understand that the parties disagree about the meaning of the term “penal” and whether detention in DHS custody constitutes detention in a “penal” institution. We have generally held that detention in the immigration context is not punitive. Matter of Valdez, 21 I&N Dec. 703, 712 (BIA 1997) (“The civil immigration detention of criminal aliens is not intended to ‘punish’ any past criminal conduct.”). The system of detention of criminal aliens is not uniform, however. For example, some aliens are held in penal institutions such as State prisons or county jails pending their immigration proceedings, and some criminal aliens are served with the notice to appear while serving their criminal sentences in a penal institution.
We need not resolve whether all immigration custody arrangements are “penal,” however, because, as we discuss below, for all persons who lack mental competency and are in a custodial setting of any type, we hold that a person of authority in the institution or his delegate must be served. See
In addition, although the regulation indicates that a person who is “not competent to understand” need not be served, in most cases it will be difficult to ascertain whether the respondent is competent to understand the notice to appear until an attempt is made to serve it, or frequently later.
B. Service on All Mentally Incompetent Persons, Whether or Not Confined
The regulations also contain a provision for the service of all persons who lack competency, “whether or not [they are] confined in an institution.”
The phrase “whether or not confined in an institution” is broad enough to encompass all persons who lack competency, whether they are detained in a penal or mental institution, are in DHS custody, or reside in their own homes or elsewhere. This provision applies to all mentally incompetent aliens, then, even if service is also required on the “person in charge” of a penal or mental institution in accordance with
When an alien is detained, his or her place of residence is “the particular setting in which he is detained.” Matter of Amaya, 21 I&N Dec. 583, 584 (BIA 1996). In a custodial setting, the appropriate “person with whom the incompetent . . . resides” is someone in a position of authority, not merely another resident of the institution. See
The DHS argues that the appropriate person on whom to serve the notice to appear is the Field Office Director, the DHS official who has legal authority over all detainees in the immigration system, whether they are detained in facilities operated by the DHS itself or by private entities or local governments. The Field Office Director is not generally located at DHS detention facilities, however, and therefore cannot fairly be considered to be a “person with whom the incompetent . . . resides.”
Both
Our approach of serving the notice to appear on the head of the institution in which the respondent is detained or on a responsible person with whom the respondent resides furthers the purpose of the regulation, whose service requirement we have held (in the context of minors) is “to direct service of the charging document ‘upon the person . . . most likely to be responsible for ensuring that an alien appears before the Immigration Court at the scheduled time.’” Matter of Mejia-Andino, 23 I&N Dec. at 536 (quoting Matter of Amaya, 21 I&N Dec. at 585); accord Nolasco v. Holder, 637 F.3d 159, 164 (2d Cir. 2011) (determining that the DHS’s failure to serve a minor respondent’s family in accordance with former
Service on a responsible person in mental competency cases also helps the DHS and the Immigration Court identify someone who can assist the respondent so that proceedings can go forward. See, e.g.,
In addition, for all respondents who lack mental competency―whether detained or not―service shall also be made, whenever possible, on the near relative, guardian, committee, or friend.
Where the respondent is not confined, serving someone close to the respondent helps ensure that the respondent will appear for the scheduled hearing. Matter of Gomez-Gomez, 23 I&N Dec. 522, 528 (BIA 2002) (“[A]n adult relative who receives notice on behalf of a minor alien bears the responsibility to assure that the minor appears for the hearing.”). In addition, where a respondent lacks competency, the family member or friend may be able to help the respondent communicate with the Immigration Court and counsel and may be able to provide relevant information regarding alienage, date of entry, removability, and eligibility for relief.
The DHS will often have background information about the respondent, including criminal or health records, prior addresses, and information about family members, that will assist the DHS in making every possible effort to locate family members or others close to the respondent to accomplish this service. In addition, the DHS should demonstrate to the Immigration Court the connection between the respondent and the person who is served. See, e.g., Matter of Mejia-Andino, 23 I&N Dec. at 536 (terminating proceedings where the DHS claimed to have served the minor respondent’s uncle but there was insufficient evidence that the adult in question was, in fact, the respondent’s uncle, and the respondent’s parents were apparently in the United States).
We recognize that most respondents will not be represented until after the DHS serves the notice to appear, but there will be some respondents who do have counsel at the time the notice to appear is issued. Although not specified in the regulations regarding incompetency, as with all respondents, if an alien is represented, notice must be served on counsel. See
In some cases, the DHS will know at the time that it issues the notice to appear whether the respondent’s case involved potential mental competency issues, particularly in a detained setting. The Public Health Service regulations and the DHS’s Operations Manual for detention standards set out guidelines for the screening, diagnosis, and treatment of detainees with mental illnesses. See
We recognize, however, that the DHS is often not able to determine at the time that it serves the notice to appear whether the respondent’s case is a “case of mental incompetency.”
Although the DHS is not making a competency determination, competency issues may be manifest at the time the notice to appear is served. For example, in cases such as this, where the respondent was transferred into DHS custody from a psychiatric hospital, or in those where a detained respondent has a known history of mental illness, the case should be treated as one of “mental incompetency” for purposes of service.
D. Competency Issues Manifest After Service of the Notice To Appear
Mental competency is a variable condition. Matter of M-A-M-, 25 I&N Dec. at 480. Thus, the longer the period of time that has elapsed since service of the notice to appear, the more difficult it becomes to gauge whether an individual was competent at the time of service. If, at a master calendar hearing held shortly after service of the notice to appear, the Immigration Judge determines that an alien is not competent or identifies sufficient indicia of incompetency to warrant handling the case under
On the other hand, competency concerns frequently arise subsequent to a master calendar hearing that was scheduled soon after the notice to appear was served. In this case, if the Immigration Judge determines that the
E. Summary
Where the indicia of a respondent’s incompetency are manifest, the DHS should serve the notice to appear on three individuals: (1) a person with whom the respondent resides, who, when the respondent is detained in a penal or mental institution, will be someone in a position of demonstrated authority in the institution or his or her delegate and, when the respondent is not detained, will be a responsible party in the household, if available; (2) whenever applicable or possible, a relative, guardian, or person similarly close to the respondent; and (3) in most cases, the respondent.
If the DHS did not properly serve the respondent where indicia of incompetency were either manifest or arose during a master calendar hearing that was held shortly after service of the notice to appear, the Immigration Judge should grant a continuance to give the DHS time to effect proper service. If indicia of incompetency become manifest at a later point in the proceedings and the Immigration Judge determines that safeguards are needed, he or she should evaluate the benefit of re-serving the notice to appear in accordance with
F. Application of the Regulations to the Respondent’s Case
Applying the regulations to the circumstances of this case, we find that it is unclear whether the regulatory requirements have been satisfied. Here, the DHS was aware of indicia of incompetency because the respondent had been transferred into DHS custody from a psychiatric hospital. Since the respondent is detained, the notice to appear should have been served on the respondent (or counsel, if he was represented), a person of authority in the detention center, and, if possible, a near relative, guardian, committee, or friend.
The DHS served the March 11, 2011, notice to appear on three parties: the respondent, who refused to sign; an Immigration and Customs Enforcement officer at the Corrections Corporations of America in East Mesa, California, the facility in which the respondent is detained; and an individual who the DHS claims is the respondent’s cousin. The DHS indicates that it served the Assistant Officer in Charge/Supervisory
The record lacks evidence regarding the chain of command and the functions and authorities of the Assistant Officer in Charge at the Otay Mesa Detention Facility. The record does not establish that the Assistant Officer in Charge is in the chain of authority for the detention center and has responsibility for detainees at the center.
The DHS also indicates that it sent a copy of the notice to appear to the respondent’s cousin, but we find insufficient evidence in the record to establish that the individual in question is, in fact, the respondent’s cousin or “near relative” under
V. CONCLUSION
The DHS has not shown that the requirements of the regulations have been satisfied under our interpretation of the governing regulations. Accordingly, we find that remand is warranted for the Immigration Judge to apply our guidance in the first instance.5 On remand, the parties will have the opportunity to submit additional evidence to establish whether the service of the notice to appear satisfies the regulation as interpreted in this decision. If necessary, the Immigration Judge should grant the DHS a continuance to properly serve the respondent.
ORDER: The decision of the Immigration Judge is vacated, and the removal proceedings are reinstated.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.