Nolcasco v. Holder ( 2011 )

09-5206-ag, 10-2780-ag
Nolcasco v. Holder
BIA
Straus, IJ
A99 471 824
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_____________________
August Term, 2010
(Argued: February 7, 2011; Decided: February 25,2011)
Docket Nos. 09-5206-ag, 10-2780-ag
_________________
ROSELIA LAZARO NOLASCO,*
Petitioner,
-v.-
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
_______________________
BEFORE: JACOBS, Chief Judge, HALL, Circuit Judge,
SCHEINDLIN, District Judge.*
_______________________
*
Although Petitioner is identified as Beatrice Magana-
Gallejo throughout all of the underlying proceedings,
Petitioner states in her brief that her real name is Roselia
Lazaro Nolasco. The Clerk of the Court is directed to amend
the official caption accordingly.
*
Judge Shira A. Scheindlin of the United States
District Court for the Southern District of New York,
sitting by designation.
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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 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.
_______________________
MICHAEL J. BOYLE, North Haven, Connecticut, for
Petitioner.
SARAH VUONG, Trial Attorney (Tony West, Assistant
Attorney General, Emily Anne Radford, Assistant
Director, Jesse D. Lorenz, Trial Attorney, on the
brief), Office of Immigration Litigation, Civil
Division, United States Department of Justice,
Washington, D.C., for Respondent.
_______________________
2
PER CURIAM:
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 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, 546 n.7
(2d Cir. 2005) (holding that where petitioner devoted only a
3
“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 8 U.S.C.
§ 1182(a)(6)(A)(i). 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, Connecticut. 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 charged, and
4
filed an application for asylum and withholding of removal.
Although there was extensive discussion of Petitioner’s youth,
neither the Immigration Judge nor the lawyers for Petitioner and
Respondent raised the issue of whether service of the NTA was
proper and whether the court had jurisdiction to hear the case.
In March 2008, following a merits hearing (at which Petitioner’s
father testified), the immigration judge denied Petitioner’s
asylum application and ordered her removed to El Salvador; the
Board of Immigration Appeals (“BIA”) summarily affirmed that
decision without opinion. See In re Beatrice Magana-Gallejo, No.
A099 471 824 (B.I.A. Nov. 18, 2009), aff’g No. 099 471 824
(Immig. Ct. Hartford, CT, Mar. 3, 2008).
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 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
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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, 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)(“[O]ur waiver doctrine is entirely prudential.”).
6
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 (i.e., 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. § 236.2(a)
(mandating that service of an NTA on a minor shall be effected in
the manner prescribed by § 103.5a(c)(2)). Petitioner was not
living with anyone at the relevant moment; but it does appear
that service on her parents may have been possible by some means.
In any event, the Government effectively concedes that DHS failed
to comply with this regulation because it only served the NTA on
Petitioner, a nine year-old child.
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
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[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 8 C.F.R. §
103.5a(c)(2)(ii) implicates a minor alien’s fundamental rights
and, if it does not, whether DHS’s actions in this case caused
Petitioner prejudice. We answer both questions in the negative.
“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 (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 8 U.S.C. § 1229(a)(1), an NTA shall specify, inter
alia, the “nature of the proceedings against the alien,” the
“time and place at which the proceedings will be held,” the “acts
8
or conduct alleged to be in violation of law,” the “charges
against the alien and the statutory provisions alleged to have
been violated,” and shall inform the alien that she may be
represented by counsel. Thus, in most instances, if an alien
receives notice of this information and a meaningful opportunity
to participate in her removal proceedings, due process is
satisfied. See Pierre v. Holder, 588 F.3d 767, 777 (2d Cir.
2009) (the “core” due process right in immigration proceedings is
“notice and an opportunity to be heard”); see also Chase Group
Alliance LLC v. City of New York Dep’t of Fin., 620 F.3d 146, 150
(2d Cir. 2010) (“‘An essential principle of due process is that a
deprivation of . . . liberty . . . be preceded by notice and
opportunity for hearing appropriate to the nature of the case.’”
(quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985)).
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 proceedings.
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
9
and her attorney at the initial hearing before the immigration
judge, where, through counsel, Petitioner admitted the
allegations in the NTA and conceded removability as charged.
Petitioner also sought relief before the immigration judge by
filing an asylum application, and after a full merits hearing,
her application was denied and the immigration judge ordered her
removed.
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; 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 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
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before the Immigration Court at the scheduled time.’” Llanos-
Fernandez v. Mukasey, 535 F.3d 79, 85 (2d Cir. 2008)(quoting In
re Mejia-Andino, 23 I. & N. Dec. 533, 536 (BIA 2002)). In this
respect, the regulation is designed to increase the probability
that a minor, like any adult alien, has notice of the charges
filed against her and thus may appear before the immigration
court and participate in the proceedings.
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 clear 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, therefore, that Petitioner was
afforded due process. DHS’s failure to make proper service did
not implicate her fundamental rights.
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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 process 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 (B.I.A. 2002)(vacating a removal order where minor’s parents
never received notice of a hearing). Plainly, this did not occur
here.
Because Petitioner cannot demonstrate that DHS’s error
implicated a fundamental right, under Waldron, 17 F.3d at 518,
remand is warranted only if the defect in service caused
Petitioner prejudice. For the reasons already identified,
Petitioner cannot make this showing because the record indicates
that her parents received actual notice of the NTA, and we find
no evidence to suggest that DHS’s failure to comply with 8 C.F.R.
§ 103.5a(c)(2)(ii) had any adverse effect on Petitioner’s ability
to answer the Government’s charges.
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.
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