Luz LLAPA-SINCHI, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
No. 07-1774.
United States Court of Appeals, Eighth Circuit.
Submitted: Dec. 10, 2007. Filed: March 28, 2008.
Rehearing and Rehearing En Banc Denied May 28, 2008.
520 F.3d 897
Abdullahi‘s sentence is affirmed.
business. Because Abdullahi‘s offense involved more than $1 million but less than $2.5 million, 16 offense levels were added pursuant to Guideline 2B1.1(b)(1)(I). Thus, Abdullahi‘s base offense level was 22.
Jesse Matthew Bless, argued, David V. Bernal, on the brief, Washington DC, for Appellee.
Before BYE, JOHN R. GIBSON, and MELLOY, Circuit Judges.
MELLOY, Circuit Judge.
Luz Llapa-Sinchi, who entered the United States illegally and was ordered deportable in absentia, petitions this court to review a Board of Immigration Appeals’ decision finding her ineligible for a suspension of deportation. She is eligible for a suspension of deportation only if she was not properly served with notice of her deportation hearing. The government served Llapa-Sinchi with notice, but she was only fourteen years old at the time. The government did not serve additional notice on a responsible adult. The crux of the dispute is whether the government‘s service on Llapa-Sinchi alone was proper service and consistent with due process. The BIA determined the government properly served Llapa-Sinchi with notice. We affirm.
I. Background
Llapa-Sinchi, born in 1980, is a citizen and national of Ecuador. She illegally entered the United States in 1995, when she was fourteen years old. On the same day she entered the country, the government served her in Arizona with an Order To Show Cause that set forth the charge of deportability because she entered without inspection. The Order To Show Cause was in both English and Spanish, and the document indicated that a government official reviewed the document with Llapa-Sinchi in both languages. The government did not serve anyone else with the Order To Show Cause. The government released her to a local legal-assistance organization, which contacted her brother-in-law, who lived in Minnesota. He wired money, enabling Llapa-Sinchi to travel to Minnesota. Two months later, Llapa-Sinchi‘s brother-in-law received a letter offering a change of venue for the hearing. He signed it, and an immigration court approved a change of venue to the jurisdiction of Chicago, Illinois, sitting in Bloomington, Minnesota. Llapa-Sinchi failed to appear for her hearing, and an immigration judge ordered her deported in absentia.
Eight years later, immigration officials arrested Llapa-Sinchi. She filed a motion to reopen her petition. At the time Llapa-Sinchi was served, immigration law allowed the Attorney General to suspend an individual‘s deportation and adjust his or
The BIA determined that Llapa-Sinchi “deserved a favorable exercise of [its] discretion” to grant a suspension of deportation. However, the BIA determined Llapa-Sinchi was ineligible for a suspension of deportation; she did not establish the requisite period of physical presence because the period ended when she was properly served with notice to appear for deportation proceedings on the day she entered the country.
The BIA determined Llapa-Sinchi‘s service was proper and explained
Llapa-Sinchi argues she was not properly served with notice for two reasons.3 She alleges the government violated her due-process rights because it served only her, as a minor, and not an adult. She also alleges the BIA and this court are bound by a Ninth Circuit case holding that service to minor aliens alone is insufficient for proper notice.
II. Discussion
“[W]e review an agency‘s legal determinations de novo, according substantial deference to the agency‘s interpretation of the statutes and regulations it administers.” Tang, 223 F.3d at 718-19 (quotation omitted). We thus review de novo the “the BIA‘s conclusion that the ‘stop-time’ provision applies to [the] [p]etitioner.” Id. at 719.
The BIA determined the government properly served Llapa-Sinchi even though it did not serve a responsible adult, because she was fourteen years old or older at the time and service was thus governed by the general notice provision. See
We also hold
Llapa-Sinchi has not argued that particular facts surrounding her service of process caused it to run afoul of due process; her arguments are based only on her status as a minor. We decline Llapa-Sinchi‘s invitation to adopt a per se rule that service to minors alone always violates the constitution.
Minors can be responsible for their own legal status and can waive their constitutional rights. Courts have repeatedly held this, and statutes have long allowed it. The Supreme Court has held minors can be responsible for waiving their right to appeal deportation and custody determinations. Reno v. Flores, 507 U.S. 292, 308-09, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (upholding, against a facial challenge, a law allowing all minors to waive their right to appeal those determinations). The Court said it was unwilling to presume all minors are “too young or too ignorant to exercise that right.” Id. A seventeen year old can waive rights guaranteed by Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), even if his parents are present and not adequately advised of the rights. United States v. White Bear, 668 F.2d 409, 411-12 (8th Cir.1982). A sixteen year old can waive his right to an appeal, Little v. Lockhart, 868 F.2d 989, 992 (8th Cir.1989), and a fifteen year old can waive his right to a jury trial, Cotton v. United States, 446 F.2d 107, 110 (8th Cir. 1971). Many state laws have long allowed personal service of a summons on minors as young as fourteen years old. See
The Ninth Circuit interpreted
Unlike the Ninth Circuit, we do not find the regulations to be inconsistent, and we do not find the Ninth Circuit‘s reasoning entirely persuasive. The purpose of the notice provision is to let individuals know
Contrary to Llapa-Sinchi‘s arguments, we conclude we are not bound by Ninth Circuit case law interpreting BIA regulations. In support of her argument, Llapa-Sinchi cites cases in which courts considered whether to apply the law of another circuit in reviewing BIA opinions. In these cases, courts considered this issue—whether to apply the law of another circuit—largely because the venue provision in effect at the time made it unclear to the BIA which circuit would be reviewing its decision. See Rosendo-Ramirez v. INS, 32 F.3d 1085, 1094 (7th Cir.1994) (noting the venue provisions “require the BIA to live with uncertainty of which court may review its decisions, and us to live with the strange situation of being asked to review a case that has applied another circuit‘s law“); Morel v. INS, 90 F.3d 833, 837 (3d Cir.1996) (reversed on other grounds) (noting the venue statute provides venue is proper in two circuits); Maldonado-Cruz v. INS, 883 F.2d 788, 790-91 (9th Cir.1989) (abrogated on other grounds) (same). Under the previous venue provision, BIA decisions could be reviewed either in the circuit where the administrative proceedings were held or where the petitioner resided.
Furthermore, in none of these cases did a court hold it was bound by another circuit‘s law. See Rosendo-Ramirez, 32 F.3d at 1094 (“[W]e are obliged to review the BIA‘s decision in accordance with our own law.“); Morel, 90 F.3d at 836-37 (reversed on other grounds) (“[A]ll of the other appellate courts confronted with a similar situation have applied the law of their own circuits.“); Maldonado-Cruz, 883 F.2d at 790-91 (abrogated on other grounds) (determining Ninth Circuit law should apply because it would prevent the INS from forum shopping and because the petitioner did not have any contacts with the other circuit where venue was appropriate). Neither this court nor the BIA in this case is bound by Ninth Circuit precedent.
III. Conclusion
Because Llapa-Sinchi was properly served with notice, the BIA correctly found her ineligible for a suspension of deportation, and we deny her petition for review.
BYE, Circuit Judge, dissenting.
I respectfully dissent. I would apply the law of the Ninth Circuit in determining whether the service of process upon Luz Llapa-Sinchi, which occurred in Arizona, was valid and proper. Under Ninth Circuit law, the service of process upon her alone when she was fourteen years old would be invalid, and she would be eligible for suspension of deportation. See Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1157-63 (9th Cir.2004) (concluding service of process upon a fifteen year old was invalid because of a conflict between two immigration regulations, and to avoid serious due process concerns).
We generally disfavor adopting rules which create an incentive for parties to
Llapa-Sinchi argues the rule adopted by the Court—which applies our circuit‘s law to a transferred immigration proceeding which commenced with service of process in the Ninth Circuit—will encourage forum shopping. I agree. Immigrants properly served with a notice to appear within the exterior boundaries of the Eighth Circuit can transfer their cases to the Ninth Circuit, and thereafter challenge the validity of service. Likewise, the government can effectively “fix” invalid service which occurs within the boundaries of the Ninth Circuit by transferring an immigrant‘s case to another circuit which recognizes the service as valid.
For the limited purpose of determining the validity of service, I believe the law of the circuit where service is accomplished should govern. Any other rule encourages and facilitates forum shopping by both parties. I therefore respectfully dissent.