Nolasco v. HolderNolasco v. Holder
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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
Petitioner has also filed a petition for review (Docket No. 09-5206-ag) of a decision of the 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 basis. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005) (holding that where petitioner devoted only a “single conclusory sentence” to the argument that he had demonstrated a well-founded fear of persecution, that claim was waived); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”). Our opinion is therefore limited to the petition for review of the Board’s denial of Petitioner’s motion to reconsider.
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 of
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 asserted that because she was a minor at the time of service, DHS was obligated under
DISCUSSION
We review the BIA’s denial of a motion to reconsider for abuse of discretion. See Kaur v. BIA 413 F.3d 232, 233 (2d Cir.2005) (per curiam). As a preliminary matter, because Petitioner conceded her removability as charged before the immigration court and did not raise the issue of improper service in those proceedings or on appeal before the BIA (other than in her motion to reconsider), she has arguably waived any claim that the agency lacked jurisdiction based on any defect in service of the NTA. See Qureshi v. Gonzales, 442 F.3d 985, 990 (7th Cir.2006) (‘When a petitioner expressly concedes his removability as charged in the NTA, he waives any objection to the IJ’s finding of removability, including the argument that the IJ lacked jurisdiction to find him removable.”). Nevertheless, we exercise our discretion and consider Petitioner’s claim on the merits because it raises an important issue as yet unaddressed by this Court’ — namely, whether service of the NTA violates a fundamental right when it is only effectuated upon a minor. Cf. In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir.2008)(per curiam) (“[0]ur waiver doctrine is entirely prudential.”).
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).”
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 federal statute.”
Waldron v. I.N.S.
17 F.3d 511, 518 (2d Cir.1993);
accord Ali v. Mukasey,
524 F.3d 145, 149 (2d Cir.2008). The issue presented by this petition is whether deficient service of a NTA under
“It is well established that the Fifth Amendment entitles aliens to due process of law in [removal] proceedings,”
Reno v. Flores,
507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). “At the core of due process is the right to notice of the nature of the charges and a meaningful opportunity to be heard.”
Brown v. Ashcroft,
360 F.3d 346, 350 (2d Cir.2004) (internal quotation marks omitted);
see Li Hua Lin v. U.S. Dep’t of Justice,
453 F.3d 99, 104-05 (2d Cir.2006)(“ ‘Due process requires that an applicant receive a full and fair hearing which provides a meaningful opportunity to be heard.’ ”) (quoting
Capric v. Ashcroft,
355 F.3d 1075, 1087 (7th Cir.2004)). “Congress, in enacting the immigration laws, has codified these rights by requiring that a Notice to Appear be served upon aliens in removal proceedings,”
Brown,
360 F.3d at 351, and under
It is undisputed that DHS served Petitioner with a copy of the NTA, that the NTA comported with the requirements of
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 when 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, 588 F.3d at 777; Li Hua Lin, 453 F.3d at 104-05.
Petitioner argues nonetheless that she was denied a fundamental right because DHS did not effect service of the NTA in a manner consistent with
However, to the extent
We hasten to add, however, that our holding in this case should not be construed as rendering superfluous DHS’s obligation under
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.