Petition for review of a decision of the Board of Immigration Appeals denying Petitioner’s motion to reconsider the Board’s prior affirmance of the immigration judge’s denial of Petitioner’s application for asylum and withholding of removal. Petitioner argues that the Board and the immigration judge lacked jurisdiction to adjudicate her removal proceeding because service of her Notice to Appear was inconsistent with 8 C.F.R. §§ 103.5a(c)(2)(ii). We conclude that the agency’s failure to make proper service under the circumstances in this case did not implicate Petitioner’s fundamental rights, and Petitioner was not prejudiced by the agency’s actions. PETITION FOR REVIEW DENIED.
Petitioner has also filed a petition for review (Docket No. 09-5206-ag) of a decision of thе BIA affirming the immigration judge’s denial of Petitioner’s application for asylum and withholding of removal. Because Petitioner does not challenge that decision in her brief on appeal, we deem any such challenge waived and DENY that petition on this bаsis.
See Yueqing Zhang v. Gonzales,
BACKGROUND
On April 13, 2006, Petitioner Roselia Lazaro Nolasco, a native and citizen of El Salvador, was served with a Notice to Appear (“NTA”) while in Department of Homeland Security (“DHS”) custody. The NTA alleged that, she entered the United States two days earlier in Arizona and was present in the United States without having been admitted or paroled, in violation оf 8 U.S.C. § 1182(a)(6)(A)®. It is undisputed that Petitioner was nine years old at the time of service. Petitioner was released from custody the following day, and on April 20, her father filed a change of address form and successfully moved on her behalf to change venue to Hartford, Cоnnecticut. In November 2006, Petitioner appeared before the immigration judge accompanied by counsel and her parents. Through counsel, she admitted the allegations in the NTA, conceded removability as
In December 2009, Petitioner filed a motion for reconsideration before the BIA, arguing for the first time that both the BIA and the immigration judge lacked jurisdiction over her removal proceedings because her NTA was served improperly. She assеrted that because she was a minor at the time of service, DHS was obligated under 8 C.F.R. § 103.5a(c)(2)(ii) to effect service simultaneously on her parents or a legal guardian, and that the agency’s failure to comply with this regulation warranted termination of her removal proceedings. The BIA denied her motion. See In re Beatrice Magana-Gallejo, No. A099 471 824 (B.I.A. Jun. 11, 2010). It concluded that, because Petitioner was represented by counsel and accompanied by her parents at her removal proceedings, none of her fundamental rights were violated by any technical defect in service. Id. Petitioner now seeks review of that decision.
DISCUSSION
We review the BIA’s denial of a motion to reconsider for abuse of discretion.
See Kaur v. BIA
Section 1229 of Title 8 of the United States Code, which governs the initiation of removal proceedings, provides in relevant part that “written notice (in this section referred to as a ‘notice to appear’) shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any).” 8 U.S.C. § 1229(a)(1). Although the statute is silent with respect to service on minors, corresponding regulations state that when effecting service on a minor (ie., an alien under 14 years of age), “service shall be made upon the person with whom ... the minor resides,” and “whenever possible, service shall also be made on the near relative, guardian, committee, or friend.” 8 C.F.R. § 103.5a(c)(2)(ii);
see
8 C.F.R.
Where the agency fails to follow its own regulations, we will remand to invalidate the challenged proceeding only where the alien demonstrates “prejudice to the rights sought to be protected by the subject regulation,” or where the “regulation [at issue] is promulgated to protect a fundamental right derived from the Constitution or a fedеral statute.”
Waldron v. I.N.S.
“It is wеll established that the Fifth Amendment entitles aliens to due process of law in [removal] proceedings,”
Reno v. Flores,
It is undisputed that DHS served Petitioner with a copy of the NTA, that the NTA comported with the requirements of 8 U.S.C. § 1229(a)(1), and that within a week of being served, Petitioner’s father filed a change of address form and a motion to change venue. There is no question, therefore, that Petitioner’s parents were aware she had been placed in removal procеedings. Indeed, they took affirmative steps to transfer her proceedings to Connecticut where they resided. In addition, Petitioner’s parents hired counsel and timely appeared along with Petitioner and her attorney at the initial hearing before the immigration judge, where, through
We have no difficulty concluding that on these facts, Petitioner was afforded due process. She was aware of the nature of the immigration proceedings and the time and place whеn those proceedings would be held; she was informed of the Government’s allegations against her and the statutory violations which she was alleged to have committed; she was advised that she could be represented by counsel and, indeed, counsel appeared on her behalf; and she appeared before the immigration judge and was granted a full opportunity to pursue relief from removal.
See Pierre,
Petitioner argues nonetheless that she was denied a fundamental right because DHS did not effect service of the NTA in a manner consistent with 8 C.F.R. § 103.5a(c)(2)(ii). She is mistaken. “ ‘[T]he purpose of requiring service of a notice to appear on the person with whom a minor respondent resides [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.’ ”
Llanos-Fernandez v. Mukasey,
However, to the extent 8 C.F.R. § 103.5a(c)(2)(ii) implicates a due process right, that right is to receive notice provided for in the NTA. And where it is сlear that the minor alien received such notice, she has no due process claim, regardless of any technical defect in the manner in which the NTA has been served. Put differently, if DHS fails to make proper service on a minor alien under § 103.5a(c)(2)(ii) and that defect in service prevents the minor from receiving notice of the NTA and a meaningful opportunity to participate in her removal proceedings, that could implicate the minor alien’s fundamental rights. But a defect in service, standing alone, does not. Here, the record is replete with proof that both Petitioner and her parents received actual notice of the contents of the NTA and were afforded a full and fair hearing before the immigration judge. There is no question, thereforе, that Petitioner was afforded due process. DHS’s failure to make proper service did not implicate her fundamental rights.
We hasten to add, however, that our holding in this case should not be construed as rendering superfluous DHS’s obligation under 8 C.F.R. § 103.5a(c)(2)(ii) to effect service of a NTA upon the adult with whom a minor alien resides. There may well be instances in which DHS’s failure to comply with 8 C.F.R. § 103.5a(c)(2)(ii) results in a lack of notice or the denial of a meaningful opportunity to be heard such that the minor alien’s due procеss rights are violated; for example, when DHS’s failure to make proper service of a NTA culminates in the entry of an in abstentia removal order. See In re Mejia-Andino, 23 I. & N. Dec. 533 (vacating a removal order where minor’s parents never received notice of a hearing). Plainly, this did not occur here.
We conclude, therefore, that the BIA did not abuse its discretion by denying Petitioner’s motion to reconsider.
CONCLUSION
The petition for review is DENIED.