VII. APPENDICES APPENDIX 1.A ................................................................................................................................ 42

APPENDIX 1.B ................................................................................................................................ 70

APPENDIX 1.C ................................................................................................................................ 87

APPENDIX 1.D .............................................................................................................................. 107

APPENDIX 2.A .............................................................................................................................. 110

APPENDIX 2.B .............................................................................................................................. 113

APPENDIX 3.A .............................................................................................................................. 116

APPENDIX 3.B .............................................................................................................................. 122

APPENDIX 4.A .............................................................................................................................. 136

APPENDIX 4.B .............................................................................................................................. 139

APPENDIX 5.A .............................................................................................................................. 142

APPENDIX 5.B .............................................................................................................................. 155

APPENDIX 6.A .............................................................................................................................. 169

APPENDIX 6.B .............................................................................................................................. 178

APPENDIX 6.C .............................................................................................................................. 182

APPENDIX 7 ................................................................................................................................. 184

APPENDIX 8.A .............................................................................................................................. 198

APPENDIX 8.B .............................................................................................................................. 201

APPENDIX 9 ................................................................................................................................. 205

APPENDIX 10 ............................................................................................................................... 229

APPENDIX 11 ............................................................................................................................... 232

APPENDIX 12 ............................................................................................................................... 234

APPENDIX 13.A ............................................................................................................................ 237

APPENDIX 13.B ............................................................................................................................ 246

APPENDIX 13.C ............................................................................................................................ 251

APPENDIX 14 ............................................................................................................................... 256

APPENDIX 15 ............................................................................................................................... 262

APPENDIX 16 ............................................................................................................................... 266

APPENDIX 17 ............................................................................................................................... 271

41

APPENDIX 1.A Sample Motions to Suppress and Terminate (Interior Enforcement)

42

KRISTEN JACKSON (Bar No. 226255) PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA 90005 Telephone (213) 385-2977, ext. 157 Facsimile (213) 385-9089 Pro Bono Counsel for Respondent Richard Roe

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT

LOS ANGELES, CALIFORNIA

In the Matter of: ) )

) File No. A 987-654-321 Richard Roe ) ) ) In Removal Proceedings ) ___________________________________ ) Immigration Judge Kevin Riley Hearing: August 23, 2010 at 8:30 AM

RESPONDENT’S MOTION TO SUPPRESS EVIDENCE AND TO TERMINATE PROCEEDINGS

Respondent Richard Cristian Roe (aka Richard Roe), through pro bono counsel, files this

Motion to Suppress Evidence and to Terminate Proceedings. It is accompanied by Declarations

in Support of the Motion. These documents, together, demonstrate that the Court must terminate

removal proceedings for the Department of Homeland Security’s failure to establish Richard’s

alienage.

STATEMENT OF FACTS

Richard is a 16-year-old dependent of the Agave County Juvenile Court. He entered

foster care when he was only 10 years old. Declaration of Richard Roe ¶ 1 (attached to the

concurrently-filed Declarations in Support of Motion to Suppress Evidence and to Terminate

Proceedings at Tab B). Richard suffers from mental retardation. It is difficult for him to

understand many things, and to remember and talk about them. He functions at a level much

lower than his actual age. He cannot read properly, and only recently learned his birthday. He

has attended a Regional Center and has received special education because of his mental

disability. Id. ¶ 2.

In 2007, Richard was arrested and placed into juvenile delinquency proceedings. He

remained in a secure Agave County Juvenile Facility for an extended period of time. Id. ¶ 4.

Although Richard had not given anyone permission to disclose information about him to DHS, a

DHS officer targeted him inside the Juvenile Facility. Id. ¶¶ 4-5. At the time, Richard did not

know he was a DHS officer. Richard is uncertain why the DHS officer chose to speak with him,

but he knows that the officer was not speaking with every boy in the Juvenile Facility. Id. ¶ 5.

While Richard was in a common area in the Juvenile Facility, a staff member told him

that “this guy wants to talk to you.” Richard approached, and the DHS officer asked him where

he was born. Richard stated that he would not tell the officer anything. The officer told Richard

2

that “You know I can put these handcuffs on you and send you back to Mexico.” Richard was

frightened, and the encounter ended shortly thereafter. Id. ¶ 6.

Apparently on November 7, 2008, which Richard believes was a short time after this first

encounter with a DHS officer, the officer returned. A staff member told Richard that he had a

visitor. He was brought to a small visiting room with one window and two doors, one of which

was locked. The DHS officer who had questioned Richard earlier was in the vicinity, and he told

Richard that Richard would speak to another person. This second person, who Richard now

knows was also a DHS officer, interrogated him. Id. ¶ 7.

During this interrogation, Richard had a difficult time focusing and understanding what

was transpiring – unsurprising, given that he was only 14 years old and scared and suffers from

mental retardation. Richard did not understand the purpose of the interview or all of the

questions. He also could not understand what was written on the papers the DHS officer had.

Either unaware of or insensitive to Richard’s mental disability, the DHS officer chided him for

failing to pay attention. Richard could not help it. Id. ¶ 8. Richard felt that he had to answer the

DHS officer’s questions. In this small room that he could not leave even though he wanted to,

Richard believed he had no choice. He was fearful that the DHS officer would deport him if he

did not answer, just as the other DHS officer had threatened to do. Id. ¶ 9.

The DHS officer did not advise Richard that he could place a phone call, and indeed there

was no phone in the room. Id. ¶ 10. He did not give Richard an I-770 or read one aloud to him.

Richard remained unaware of his rights to a phone call, to speak with a lawyer and to have a

hearing before an immigration judge. Id. ¶ 11. Richard did not understand that an admission of

foreign birth may prove alienage or help to establish removability; indeed, he did not even

comprehend these concepts. Richard simply knew he did not want to be deported. Id. ¶ 12.

3

After the November 7, 2008 interrogation ended, Richard did not interact with DHS

officers again until March 2009. At that time, DHS took him from the Agave County Juvenile

Facility into federal custody based on a November 7, 2008 detainer it had lodged. Id. ¶ 21.

PROCEDURAL HISTORY

On March 11, 2009, DHS created a Notice to Appear charging Richard as removable

under Section 212(a)(6)(A)(i) of the Immigration and Nationality Act. Two days later, DHS

created a superseding NTA. That NTA alleged, among other things, that Richard is a native and

citizen of Mexico and that he entered the United States on an unknown date in 1996. In 1996,

Richard would have been, at the most, two years old. This NTA was filed with the Immigration

Court in Portland, Oregon while Richard was in federal custody. See Notice to Appear (dated

Mar. 13, 2009 and filed Mar. 18, 2009).

When Richard was released from federal custody to the Agave County Social Services

Agency Department of Children and Family Services, DHS filed a Motion to Change Venue to

Los Angeles. See DHS Motion to Change of Venue (dated June 3, 2009). This Motion was

granted. See Order (dated June 8, 2009). On July 9, 2009, Richard appeared in the Los Angeles

Immigration Court without counsel. The case was reset, ultimately, to January 12, 2010.

On January 12, 2010, Richard appeared with his former counsel Sally Monroe. He

obtained a four-week continuance to review the NTA, which Ms. Monroe had not yet seen. On

February 9, 2010, Richard returned to Immigration Court. Through counsel, he: (1) declined to

admit the factual allegations and concede removability; and (2) asserted that he was putting DHS

to its burden of proving his alienage. The case was then set for an Individual Hearing on

removability on May 17, 2010.

4

On April 1, 2010, undersigned pro bono counsel Kristen Jackson filed a Motion to

Substitute Counsel. See Motion for Substitution of Counsel (dated Apr. 1, 2010). This Motion

was granted. See Order (dated Apr. 5, 2010).

At the May 17, 2010 hearing, Ms. Jackson re-asserted that Richard was putting DHS to

its burden to establish alienage. DHS did not have its evidence of alienage prepared for filing,

but agreed to file its evidence by July 23, 2010. The Court set the case for an August 23, 2010

Individual Hearing. This hearing was designated for “status,” and Ms. Jackson was instructed to

bring whatever motions she saw fit to file at the hearing. On July 23, 2010, DHS served a two-

page I-213 dated January 23, 2009 as its only evidence of Richard’s alienage. This Motion and

the accompanying Declarations now follow.

STATEMENT OF THE ISSUE

Whether DHS has established, as it must, Richard’s alienage by clear, unequivocal and

convincing evidence.

STATEMENT OF THE BURDEN OF PROOF

DHS bears the burden of establishing Richard’s alienage by “clear, unequivocal and

convincing evidence.” See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir.

2005) (citing Woodby v. INS, 385 U.S. 276, 286 (1966)).1 This is not a matter to be taken lightly.

Alienage triggers this Court’s jurisdiction. See INA § 240(a)(1) (“An immigration judge shall

conduct proceedings for deciding the inadmissibility or deportability of an alien.” (emphasis

added)); see also Murphy v. INS, 54 F.3d 605, 609 (9th Cir. 1995). If DHS fails to come up with

this exacting evidence of alienage, removal proceedings must be terminated. Id.

1 Language in some BIA and Ninth Circuit opinions suggest that the evidence need only be “clear and convincing” but not “unequivocal.” Whichever standard is used, unequivocal or not, the result is the same: DHS cannot meet its burden of proving Richard’s alienage.

5

SUMMARY OF THE ARGUMENT

As a general rule, a properly authenticated I-213 can establish alienage. See Lopez-

Chavez v. INS, 259 F.3d 1176, 1178 (9th Cir. 2001). That I-213s generally can establish alienage,

however, does not mean that every I-213, no matter how defective, can serve that purpose. See

Murphy, 54 F.3d at 610-12; Matter of Mejia-Andino, 23 I&N Dec. 533, 538 (BIA 2002)

(concurrence). Here, the I-213 fails the test. It must be suppressed in light of serious

constitutional and regulatory violations. In addition, it fails to meet minimal evidentiary

standards and is inherently unreliable. Even if it were admitted, under 8 C.F.R. 1240.10(c)

(2010) it could not meet DHS’s burden. The Court should terminate proceedings against Richard

for lack of jurisdiction.

ARGUMENT I. This Case Involves “Considerations and Principles of Special Care” Because It Involves the Alienage of a Juvenile.

As a preliminary matter, it is important to note that DHS first apprehended Richard and

created this I-213 when he was merely 14 years old. Richard is now only 16. Thus the analysis of

his alienage must be conducted through the lens of the “considerations and principles of special

care” accorded to juveniles. See Matter of Gomez-Gomez, 23 I&N Dec. 522, 524 (BIA 2002);

see also Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045 (9th Cir. 2007) (requiring the BIA to

evaluate harm through the eyes of seven and nine-year-olds, the ages of the 22- and 24-year-old

respondents when key events occurred).

Using this lens requires acknowledging that DHS officers working with juveniles have

heightened duties of investigation and reporting, as outlined below, and thus should be held to a

higher standard in creating I-213s for them. The Court’s exercising “special care” also means

conducting a comprehensive and independent inquiry into evidence allegedly proving a

6

juvenile’s alienage. See Matter of Amaya-Castro, 21 I&N Dec. 583, 586-87 (BIA 1996) (noting

that “an Immigration Judge must exercise particular care in determining [a child’s]

deportability”). Finally, it means keeping in mind the challenges all children face in interacting

with immigration authorities – issues of “age, development, experience and self-determination” –

as well as those particular to unaccompanied children like Richard. See Michael J. Creppy, Chief

Immigration Judge, U.S. Dep’t of Justice, Executive Office for Immigration Review, Guidelines

for Immigration Court Cases Involving Unaccompanied Alien Children, at 2 (Sept. 16, 2004).

This is especially true for children, again, like Richard, who have been diagnosed with mental

retardation or other developmental disabilities. See Immigration Judge Benchbook, “Tools for

the IJ – Introductory Guides – Mental Health Issues” I.A (“[O]ne of the great challenges facing

immigration courts today involves respondents who are incompetent.”)

II. The Court Should Grant the Motion to Suppress Evidence Because the Methods Used to Gather Information for the I-213 Violated Richard’s Fifth Amendment Rights and DHS Regulation.

The exclusionary rule “is an exceptional remedy typically reserved for violations of

constitutional rights.” Hong v. Mukasey, 518 F.3d 1030, 1034 (9th Cir. 2008) (internal

quotations omitted). Generally, it does not apply in removal proceedings. INS v. Lopez-Mendoza,

468 U.S. 1032, 1050 (1984); Hong, 518 F.3d at 1034. Nonetheless, evidence can be excluded

when “transgressions implicate fundamental fairness and undermine the probative value of the

evidence obtained” or, in some cases, when DHS violates its own regulations. See Hong, 518

F.3d at 1035. This exclusion thus stems from the “Fifth Amendment due process guarantee that

operates in removal proceedings.” Id. Richard is entitled to relief on various Fifth Amendment

grounds, as spelled out below.

7

A. DHS’s Use of Information Released in Violation of California Law Justifies Suppression. California law takes very seriously the special vulnerability of minors, and protects

carefully those children who make their way into the juvenile court system. One aspect of this

care is confidentiality. California Welfare & Institutions Code § 827 guards records and

information relating to juvenile arrests and juvenile court dependency and delinquency

proceedings from unauthorized disclosure. “A juvenile case file, any portion thereof, and

information relating to the content of the juvenile case file” fall within its ambit, with the

“juvenile case file” being defined as

a petition filed in any juvenile court proceeding, reports of the probation officer, and all other documents filed in that case or made available to the probation officer in making his or her report, or to the judge, referee, or other hearing officer, and thereafter retained by the probation officer, judge, referee, or other hearing officer.

Cal. Welf. & Inst. Code § 827(a)(4), (e). So, too, does California Welfare & Institutions Code §

827 protect: (1) agency files for cases in which no juvenile court proceedings were instituted but

the case was handled informally, see Matter of Elijah S., 125 Cal. App. 4th 1532, 1552 (1st Dist.

2005); (2) police reports, including those for children only temporarily detained, see T.N.G. v.

Superior Court, 4 Cal. 3d 767, 780-81 (1971); and (3) “any [other] information” regarding the

juvenile, id. at 780.

Certain individuals are allowed to inspect these documents without a court order. They

include, among others, the minor, his parents or guardians, prosecutors acting under state law,

school district superintendents, and members of child protective services. Cal. Welf. & Inst.

Code § 827(a)(1). They also include “[t]he attorneys for the parties, judges, referees, other

hearing officers, probation officers, and law enforcement officers who are actively participating

in criminal or juvenile proceedings involving the minor.” Id. § 827(a)(1)(E). Even these

8

individuals allowed to “inspect” the records – and in some instances make copies – cannot

“disseminate” the information to third parties not enumerated in the statute without “prior

approval of the presiding judge of the juvenile court” unless “it is used in connection with and in

the course of a criminal investigation or a proceeding brought to declare a person a dependent

child or ward of the juvenile court.” Id. § 827(a)(4).

Aside from these individuals, others who want access to confidential records or

information so that they may inspect, copy or disseminate them must file a petition to be

“designated by court order of the judge of the juvenile court” for access. Id. § 827(a)(1)(P). In

adjudicating these petitions, the juvenile court must:

balance the interests of the child and other parties to the juvenile court proceedings, the interests of the petitioner, and the interests of the public. . . . To do so, the court must take into account any restrictions on disclosure found in other statutes, the general policies in favor of confidentiality and the nature of any privileges asserted, and compare these factors to the justification offered by the applicant in order to determine what information, if any, should be released to the petitioner. The court may permit access only insofar as is necessary.

People v. Superior Court, 107 Cal. App. 4th 488, 492 (5th Dist. 2003) (internal quotations and

citations omitted). As a general rule, “the balance of the concerns weigh predominately against

access.” Pack v. Kings County Human Servs. Agency, 89 Cal. App. 4th 821, 829 (5th Dist. 2001).

This is consistent with “the strong public policy of confidentiality of juvenile proceedings and

records [that] has long been recognized.” Matter of Keisha T., 38 Cal. App. 4th 220, 231 (3d

Dist. 1995).

In light of these provisions, it is clear that DHS needs to secure an order from the juvenile

court to obtain information to use in targeting and interrogating youth for the following reasons.

First, “any information” gathered about a minor – surely including information related to his

place of birth or immigration status – in the course of any arrest or juvenile court proceeding is

9

protected by California Welfare & Institutions Code § 827. T.N.G., 4 Cal. 3d 767 at 780. Second,

DHS is not a party authorized by statute to have access to the information absent court order –

that is, DHS officers are not “law enforcement officers who are actively participating in criminal

or juvenile proceedings involving the minor.” Cf. Cal. Welf. & Inst. Code § 827(a)(1)(E). These

DHS officers plainly cannot be “actively participating” in proceedings against minors who have

not yet been identified as suspected violators of federal immigration law. Even if immigration

proceedings were being actively pursued at the time information is sought, these proceedings are

civil and not specific to juveniles, and therefore not “criminal or juvenile” as the statute requires.

Third, other juvenile court players are not allowed to release information or documents to DHS

without a court order because DHS’s investigations are civil, not criminal, and thus not subject to

dissemination under California Welfare & Institutions Code § 827(a)(4).

Moreover, DHS does not fall into the general exception to confidentiality found at

California Welfare & Institutions Code § 828, which provides that “any information gathered by

a law enforcement agency . . . relating to the taking of a minor into custody may be disclosed to

another law enforcement agency . . . or to any person or agency which has a legitimate need for

the information for purposes of an official disposition of a case.” Cal. Welf. & Inst. Code §

828(a). The legislative history of this provision makes clear that it was designed to facilitate the

sharing of juvenile court information solely between state law enforcement agencies, and that

extension of this exception to federal authorities was not contemplated. See Enrolled Bill

Memorandum to Governor (SB 910, Nov. 20, 1972) and letters in the Governor’s Chaptered Bill

File for SB 910. Additionally, DHS plainly cannot have a “legitimate need” for confidential

information “for purposes of an official disposition of a case” when the identity of an alleged

violator of federal immigration laws has not yet been revealed to them. Even if DHS were to

10

seek information after immigration proceedings were being actively pursued against a minor, the

context and legislative history of California Welfare & Institutions Code § 828 make clear that

“disposition of a case” refers to juvenile court proceedings, not an investigation of civil

immigration law violations.

In this case, it appears that DHS did receive and use confidential information that falls

within the ambit of California Welfare & Institutions Code § 827. Before his contact with DHS

inside the Agave County Juvenile Facility, Richard had never spoken with a DHS officer. Roe

Decl. ¶ 5. He never gave permission for anyone to tell DHS anything about him. Id. ¶ 4. Yet he

was targeted and questioned inside the facility, and DHS’s actions do not appear to be random.

Richard knows that DHS was not interviewing every boy in the facility. Id. ¶ 5. Presumably,

DHS was not engaging in racial or ethnic profiling, targeting youth who looked Latino or

“illegal” or who had Latino-sounding names. Instead, it appears that someone connected to

Richard’s juvenile case disclosed information and documents about him. This is borne out by the

contents of Richard’s A file.2 And there is absolutely no evidence to suggest that a judge of the

Agave County Juvenile Court, on the basis of a properly-filed petition, granted DHS access to

the confidential material or that the presiding judge of the Agave County Juvenile Court had

given any other juvenile court player permission to disseminate this material to DHS – which the

analysis above makes clear was essential.

2 Ms. Jackson, although pro bono counsel of record in these removal proceedings, is not entitled to inspect Richard’s juvenile case files absent a court order under California Welfare & Institutions Code § 827. Supplemental Declaration of Kristen Jackson ¶ 2 (attached to the concurrently-filed Declarations in Support of Motion to Suppress Evidence and to Terminate Proceedings at Tab C). Such is the strength of California’s confidentiality provisions. As a result, she has not yet been able to review Richard’s juvenile case files. She has, however, obtained a redacted copy of Richard’s A file and notes that there are many confidential Agave County Juvenile Court, Probation Department and Health Care Agency documents, and no petition or order under California Welfare & Institutions Code § 827, in that file. Id. ¶ 3.

11

The record leaves only one logical conclusion: DHS obtained confidential information

about Richard that was released in violation of California law, and used that information to target

Richard for interrogation. DHS also apparently used the confidential information it obtained to

partially complete the I-213. See Section III.B.1, below. This breach of California law, and its

use directly contrary to Richard’s interests, is fundamentally unfair, and unlikely to be isolated to

his case. To allow DHS to use the I-213 – a document whose creation was made possible only

through an egregious violation of California law designed to protect Richard – in these

proceedings would violate basic notions of due process guaranteed by the Fifth Amendment. See

Hong, 518 F.3d at 1035; cf. Martinez-Medina v. Holder, No. 06-75778, 2010 U.S. App. LEXIS

16703, at *7-8 (9th Cir. Aug. 12, 2010) (evaluating whether a violation of the Fourth

Amendment was “egregious” such that it may justify suppressing evidence of removability). The

Court should bar DHS from using this I-213 against Richard, because its creation was only made

possible by the release of confidential information to DHS in violation of California law.

B. Richard’s November 7, 2008 Interrogation Was Plagued by Coercion and Duress Justifying Suppression. The Fifth Amendment bars the use of involuntary statements in removal proceedings. See

Cuevas-Ortega v. INS, 588 F.2d 1274, 1277 (9th Cir. 1979). Indeed, “[e]xpulsion cannot turn

upon utterances cudgeled from the alien by government authorities; statements made by the alien

and used to achieve his deportation must be voluntarily given.” Choy v. Barber, 279 F.2d 642,

646 (9th Cir. 1960). The Board has recognized that “[t]he use of admissions obtained from a

respondent involuntarily to establish deportability is fundamentally unfair.” Matter of Ramirez-

Sanchez, 17 I&N Dec. 503, 505 (BIA 1980); see also Matter of Garcia, 17 I&N Dec. 319, 321

(BIA 1980) (“we are satisfied that the respondent’s admissions which underlie the finding of

12

deportability were involuntarily made and that the requirements of due process warrant their

exclusion from the record” (citing Choy, 279 F.2d at 642)).

In determining whether a statement introduced in removal proceedings was involuntary,

the federal courts and the Board have looked to the totality of the circumstances. See Matter of

Toro, 17 I&N Dec. 340, 343 (BIA 1980) (“The circumstances surrounding an arrest and

interrogation, however, may in some cases render evidence inadmissible under the due process

clause of the fifth amendment.” (citing Garcia, 17 I&N Dec. at 319)). This may include

“physical abuse, hours of interrogation, denial of food or drink, threats or promises, or

interferences with any attempt by the respondent to exercise his rights.” Ramirez-Sanchez, 17

I&N Dec. at 506. It can also include DHS’s failure to comply with its own regulations going to

voluntariness. See De Rodriguez-Echeverria v. Mukasey, 534 F.3d 1047, 1051 (9th Cir. 2008);

Matter of Garcia-Flores, 17 I&N Dec. 325, 327 (BIA 1980). The respondent must establish

“coercion, duress, or improper action.” Cuevas-Ortega, 588 F.2d at 1278.

When analyzing whether coercion or duress tainted an interrogation, the Court must

factor in the individual characteristics of the person questioned. “The due process test takes into

consideration the totality of all of the surrounding circumstances – both the characteristics of the

accused and the details of the interrogation. It is not sufficient for a court to consider the

circumstances in isolation.” Doody v. Schriro, 596 F.3d 620, 638 (9th Cir. 2010) (internal

quotations and citations omitted) (emphasis added); see also Choy, 279 F.2d at 647 (noting that

the treatment a respondent suffered was viewed in light of his being a “highly educated man”).

When the person questioned is a juvenile, the likelihood that an interrogation is coercive

substantially increases. This has long been recognized. The Supreme Court, over 50 years ago,

stated:

13

And when, as here, a mere child – an easy victim of the law – is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of great instability which the crisis of adolescence produces. . . .

Haley v. Ohio, 332 U.S. 596, 599 (1948); see also Matter of Gault, 387 U.S. 1, 45 (1967)

(“admissions and confessions of juveniles require special caution”).

Both the Board and the Ninth Circuit have refused to suppress evidence when there was

simply a “bare assertion that a statement [was] involuntary.” Cuevas-Ortega, 588 F.2d at 1278

(“no testimony or evidence [was] presented by petitioners . . . to establish that the statements at

the office were involuntary”); Matter of Barcenas, 19 I&N Dec. 609, 611 (BIA 1988) (“he

offered no evidence to even suggest that the contents of the form . . . was the result of coercion

or duress”); Ramirez-Sanchez, 17 I&N Dec. at 505 (“There is no evidence that the prior

statements of Mario Ramirez-Sanchez were made involuntarily.”); Toro, 17 I&N Dec. at 344

(“there was no evidence offered or alleged that the respondent’s admissions were either

involuntary or otherwise affected by the circumstances of her arrest”). But where proper

evidence has been submitted, the Board and the Ninth Circuit have found in favor of suppression

– as the Court should do here.

Richard has provided specific evidence that, when viewed in the totality of the

circumstances, establish that his statements to the DHS officer were involuntary – that is, they

were plagued by coercion and duress. The circumstances of the interrogation, in light of

Richard’s own characteristics, were extremely coercive. The DHS officer questioned Richard

inside a small room, inside a locked facility. Roe Decl. ¶ 7. Although the interrogation was not

lengthy, it was difficult for Richard. See Gallegos v. Colorado, 370 U.S. 49, 54 (1962)

(disagreeing that a 14-year-old child’s confession was voluntary simply because it “came

14

tumbling out as soon as he was arrested”). Even younger than the child in Haley, Richard was a

14-year-old foster child who suffers from mental retardation. See Choy, 279 F.2d at 646-47

(acknowledging that interrogations are more trying for “persons of rather low mentality”); Roe

Decl. ¶ 8. He had difficulty following the DHS officer, and the officer chided him for this. Id. ¶

8. He could not read properly or understand the papers the DHS officer had. Id. He did not

understand the purpose of the interview, or the significance of the questions or their answers. See

Gallegos, 370 U.S. at 53-54 (noting that a 14-year-old boy “cannot be compared with an adult in

full possession of his senses and knowledgeable of the consequences of his admissions” and

finding his confession involuntary); Roe Decl. ¶¶ 8, 12.

Richard feared the DHS officer and felt compelled to answer his questions. See Singh v.

Mukasey, 553 F.3d 207, 215 (2d Cir. 2009) (finding a statement involuntarily given when the

officer threatened him with jail and the respondent broke down crying); Roe Decl. ¶ 9. He did

not think he had a choice. Singh, 553 F.3d at 215; see also Navia-Duran v. INS, 568 F.2d 803,

805 (1st Cir. 1977) (finding a signed statement inadmissible in part because the respondent felt

“she had no choice but to cooperate” with the agents); Roe Decl. ¶ 9. He was afraid he would be

deported if he did not answer. Id. Indeed, when Richard previously had refused to answer

another DHS officer’s questions, he had been told “You know I can put these handcuffs on you

and send you back to Mexico.” See Choy, 279 F.2d at 647 (finding an officer’s threat of

deportation weighed against a statement’s voluntariness); Roe Decl. ¶ 9. Additionally, as

outlined in the following Section, DHS did not comply with its own regulation designed to

prevent coercion. Garcia, 17 I&N Dec. at 320 (noting that DHS failed to follow its regulation

protective of Fifth Amendment rights and ultimately concluding the statement was involuntary).

Richard was not advised of his rights to a phone call and a lawyer and a hearing before an

15

immigration judge. Roe Decl. ¶ 11. He was unable to stand up for himself. See Gallegos, 370

U.S. at 54 (noting that a 14-year-old child “is unable to know how to protect his own interests or

how to get the benefits of his constitutional rights”). For these reasons, taken in their totality,

Richard’s answers to the DHS officer’s questions were involuntary. The Court should not admit

them into evidence.

C. DHS Violation of 8 C.F.R. § 236.3(h), Which Implicates the Fifth Amendment, Justifies Suppression. Quite recently, the Ninth Circuit considered in what circumstances alleged regulatory

violations justify exclusion. It acknowledged that “there is ‘no rigid rule . . . under which every

violation of an agency regulatory requirement results in . . . the exclusion of evidence from

administrative proceedings.’” Choy, 518 F.3d at 1035 (citing Garcia-Flores, 17 I&N Dec. at

327). Instead, such evidence will be excluded if: (1) the regulation serves a “purpose of benefit to

the alien;” and (2) the violation “prejudiced interests of the alien which were protected by the

regulation.” Choy, 518 F.3d at 1035 (internal quotations and citations omitted).

Undoubtedly, 8 C.F.R. § 236.3(h) serves to benefit children like Richard. It provides:

Notice and request for disposition. When a juvenile alien is apprehended, he or she must be given a Form I-770, Notice of Rights and Disposition. If the juvenile is less than 14 years of age or unable to understand the notice, the notice shall be read and explained to the juvenile in a language he or she understands. In the event a juvenile who has requested a hearing pursuant to the notice subsequently decides to accept voluntary departure or is allowed to withdraw his or her application for admission, a new Form I-770 shall be given to, and signed by the juvenile.

The I-770 itself provides notice of many rights, and informs the juvenile that “You have the right

to use the telephone . . .You have the right to be represented by a lawyer . . . [and] You have the

right to a hearing before a judge.” The Board has considered 8 C.F.R. § 287.3 – an analogous

regulation that required notice of the right to counsel at no expense to the government – and

concluded that the regulation’s protections did “serve a purpose of benefit to the alien.” Garcia-

16

Flores, 17 I&N Dec. at 329. 3 The Court should conclude that the same is true for 8 C.F.R. §

236.3(h).

Clearly, violations of 8 C.F.R. § 236.3(h) do prejudice children’s interests protected by

the regulation, in general, and did prejudice those of Richard, in particular. Because DHS failed

to timely issue Richard an I-770, he remained ignorant of his right to a phone call, right to a

lawyer, and right to a hearing. Roe Decl. ¶ 11. Had he known of these rights, at a minimum he

would have contacted his juvenile-court-appointed counsel for assistance before proceeding with

an interview. Id. That lawyer should have properly advised Richard regarding his additional

rights, or should have found an attorney who could do so. Jackson Decl. ¶ 5. The I-770 itself

acknowledges this role of counsel by stating “[y]our lawyer can fully explain all your rights to

you.” Thus DHS’s violation of 8 C.F.R. § 236.3(h) compromised Richard’s Fifth Amendment

right to due process by leaving him ignorant of his right to counsel. It also compromised his

accompanying Fifth Amendment right to remain silent in the face of questions regarding

alienage; counsel likely would have invoked this right on Richard’s behalf and thus prevented

DHS from obtaining the incriminating information that it did. See Jackson Decl. ¶ 5; see also

Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1019 (9th Cir. 2006) (“The Fifth Amendment

privilege against self-incrimination applies in removal hearings where the alien’s testimony

could expose him to future criminal prosecution.”) Given that 8 C.F.R. § 236.3(h) is designed to

3 The notices required by 8 C.F.R. § 287.3(c) are inapplicable here, as the Ninth Circuit has recently held that they are triggered only when a person has been “placed in formal proceedings” through the issuance of a Notice to Appear, given the regulatory language to this effect. See Samayoa-Martinez v. Holder, 558 F.3d 897, 901-02 (9th Cir. 2009). Such a restriction, however, does not exist in 8 C.F.R. § 236.3(h). Richard was clearly “apprehended” on November 7, 2008, requiring service of the I-770. See Matter of Ponce-Hernandez, 22 I&N Dec. 784, 785 (BIA 1999) (repeatedly using language indicating that “apprehension” and “arrest” of a minor are distinct). DHS’s subsequent issuing of an I-770 to him on March 11, 2009 does not cure this violation, since the prejudice to Richard had already accrued.

17

protect Richard’s interests and DHS’s failure to follow the regulation prejudiced him, the Court

should not admit his statements into evidence.

III. The Court Should Grant the Motion to Terminate Proceedings Because the Defective and Insufficient I-213 Is DHS’s Only Evidence of Alienage and Even if Admitted It Cannot Meet DHS’s Burden.

A. If the Court Suppresses the I-213, It Should Terminate Proceedings Since DHS

Elected to Rely Solely Upon the I-213 to Establish Alienage.

If the Court grants the concurrently-filed Motion to Suppress Evidence, the Court should

grant the Motion to Terminate Proceedings. DHS has no other timely-filed or admissible

evidence to establish Richard’s alienage. DHS made a choice to submit the I-213 as its sole

evidence, in advance of the August 23, 2010 hearing as instructed by the Court, and it should be

held to that choice. See 8 C.F.R. § 1003.31(c) (“If an application or document is not filed within

the time set by the Immigration Judge, the opportunity to file that application or document shall

be deemed waived.”); see also Immigration Court Practice Manual § 3.1(d)(ii) (“if an exhibit is

untimely, it is not entered into evidence or it is given less weight.”). Richard will object

vigorously, on both timeliness and admissibility grounds, to any DHS attempt to submit

additional evidence of alienage to the Court.4

4 For the reasons set forth in Section II.A, Agave County Law Enforcement, Probation Department, Department of Social Services, Health Care Agency or Juvenile Court documents pertaining to Richard cannot be submitted directly to the Court without running afoul of California law. If DHS attempts to submit evidence obtained from any of these sources, the Court should not accept the evidence for filing unless DHS obtains an order from the presiding judge of the Agave County Juvenile Court authorizing dissemination of the evidence. See Cal. Welf. & Inst. Code § 827(a)(4).

18

B. If the Court Does Not Suppress the I-213 on the Grounds Outlined in Section II, It Should Nonetheless Refuse to Admit the I-213 and Should Terminate Proceedings Because the I-213 Cannot Meet DHS’s Heavy Burden.

Even if the Court denies the Motion to Suppress Evidence, the Court should nonetheless

refuse to admit the I-213 as evidence of alienage because it fails to meet minimal evidentiary

standards and is inherently unreliable. The reasons are set forth below.

1. The Complete Information in the I-213 Did Not Come from Richard.

I-213s are presumed inherently trustworthy and capable of establishing alienage in

significant part because they are “essentially a recorded recollection of a [DHS agent’s]

conversation with the alien.” Espinoza v. INS, 45 F.3d 308, 308 n. 1 (9th Cir. 1995) (citation

omitted). Indeed, I-213s are typically regarded as records of the subject’s own statements – that

is, created from “information out of the alien’s mouth.” Id. at 310.

Source, then, is highly relevant to an I-213’s reliability. The Ninth Circuit, in finding I-

213s admissible to prove alienage, has repeatedly relied heavily upon the fact that the undisputed

source of the particular I-213’s information was the respondent himself. See, e.g., Lopez-Chavez,

259 F.3d at 1181 (upholding alienage where there was “no evidence that the information on the

form was obtained . . . from anyone other than Lopez-Chavez himself”). In cases where an I-

213’s source is disputed or is found not to be the respondent himself, the Ninth Circuit has found

that that I-213 alone cannot meet the government’s burden. See Hernandez-Guadarrama, 394

F.3d at 680-81 (giving an I-213 no weight where its source was not the respondent); Murphy, 54

F.3d at 610-11 (concluding that an I-213 merited little if any weight when the source of the

information was in doubt). The BIA has repeatedly concluded the same. See Ponce-Hernandez,

22 I&N Dec. at 785 (upholding in absentia removal order where there was “nothing to indicate

that [the I-213’s information] came from anyone other than the respondent”); Barcenas, 19 I&N

19

Dec. at 611 (upholding a deportation order where the I-213 “reflects that [the officer] completed

the form based upon admissions made by the respondent”).

Under these precedents, the I-213 here is clearly unreliable. Richard disputes the source

of much of the I-213’s information. He denies that he supplied some of the information to ICE

himself at times relevant to the I-213’s creation. Roe Decl. ¶ 13. He does not know who did

supply some of the information, or when or how it was supplied. Id. Although it is likely that the

information came from the Agave County Juvenile Court or Probation Department records in

violation of California law, as outlined in Section II.A, Richard cannot say for certain. Id. ¶ 4-5,

13. Like the government in Hernandez-Guadarrama and Murphy, DHS here cannot use this

mysteriously-sourced I-213 to prove Richard’s alienage.

2. Material Information on the I-213 Is Incorrect.

Obviously, when DHS is using an I-213 to sustain its burden, it is of utmost importance

that the document itself contains correct information. Both the Ninth Circuit and the BIA have

acknowledged that errors on an I-213 undermine its evidentiary value. In upholding the use of I-

213s in numerous cases, they have noted that the result would be different if the I-213s contained

errors. See Espinoza, 45 F.3d at 310 (concluding that an I-213 alone would not be clear and

convincing evidence of alienage when a respondent produces evidence contradicting material

information on the I-213 itself); Gomez-Gomez, 23 I&N Dec. at 524 (observing that an I-213 is

deemed inherently trustworthy and admissible to prove alienage only “absent any evidence that

[it] contains information that is inaccurate”); Ponce-Hernandez, 22 I&N Dec. at 785 (same).

This is hardly surprising. Incorrect information on an I-213, taken as true, could lead to

disastrous results. A U.S.-born citizen whose I-213 shows him as born in Honduras may receive

a removal order on the basis of this inaccurate information. A person who entered the U.S. years

20

before the I-213 states he did may be presumed not to qualify for important forms of relief,

including cancellation of removal. Incorrect information on children’s I-213s is of particular

concern, given a child’s more limited ability to “understand[] whether the factual allegations

made against him are accurate” and the challenges of his “age and pro se and unaccompanied

status.” Amaya-Castro, 21 I&N Dec. at 586-87 & n.4 (holding that 13-year-old child’s factual

admissions in court, after comprehensive inquiry, could establish his alienage but the I-213 itself

could not serve that purpose). Problems with accuracy can arise from a DHS officer’s own

misapprehensions or from the child’s faulty or clouded memory.

Here, Richard disputes the accuracy of the I-213 in that it, for one, contains an incorrect

date of birth. Roe Decl. ¶ 19. Richard’s complete name and its proper spelling are incorrect. Id. ¶

15. His address and phone number are also incorrect. Id. ¶¶ 17-18. He is not known by the alias

“Simon Roe.” Id. ¶ 16. He was not in “good . . . mental health” at the time of his interrogation.

Id. ¶ 8. His mother’s name is incorrect. Id. ¶ 20. Richard did not state that he was a “citizen or

national” of any country, as the I-213 suggests, and indeed did not even comprehend what that

means. Id. ¶ 14. Richard’s declaration is evidence of these errors. See Espinoza, 45 F.3d at 310

(concluding that evidence of inaccuracy is needed – as opposed to mere suspicion). The evidence

he has submitted, supported by his testimony, should be enough to discount the reliability of the

I-213, as no Ninth Circuit or BIA case has required extensive or detailed evidence to establish

the inaccuracy of an I-213. See Barcenas, 19 I&N Dec. at 611. The defects in this I-213 are clear

and it should not be used to establish Richard’s alienage.

3. A Substantial Temporal Gap Exists Between Richard’s Interrogation and the Creation of This I-213.

I-213s are given a presumption of inherent trustworthiness in part because they are

considered documents created in the normal course of business, “in accordance with normal

21

recordkeeping requirements.” See Espinoza, 45 F.3d at 308 (also noting that “border agents

routinely complete [the I-213s] after interviewing aliens”); Matter of Rojas, 15 I&N Dec. 722,

723 (BIA 1976) (describing immigration officer’s “unvarying practice” in creating I-213s).

Part of the “normalcy” of the I-213 is its creation in relatively short order after the

immigration officer obtains information on its subject. Indeed, DHS’s own Office of the

Inspector General acknowledges that the initial processing of juveniles – completed before DHS

determines whether the youth will be voluntarily returned across the border, released to a

sponsor pending removal proceedings, or kept in custody – includes both gathering information

on the juvenile and “completing necessary immigration paperwork, such as the Form[] I-213.”

Office of Inspector General, U.S. Dep’t of Homeland Security, A Review of DHS’

Responsibilities For Juvenile Aliens, at 8 (Sept. 2005). Creation of the I-213 shortly after

information gathering is also common in other parts of DHS. See, e.g., Refugee, Asylum and

International Operations Directorate, U.S. Citizenship & Immigration Services, Affirmative

Asylum Procedures Manual, at 45 (Nov. 2007) (noting that the I-213, if required, is to be created

before a case is referred to Immigration Court).

In this case, the I-213 was created over two and a half months after DHS interrogated

Richard inside the Agave County Juvenile Facility. Richard was not re-interviewed, nor did he

provide any of the information on the I-213 in January 2009, the date on the I-213. See Roe Decl.

¶ 21. Thus, a significant period of time passed between the information collection from Richard

and its recording in this I-213. This passage of time impacts the information’s reliability. Cf.

Immigration Officer Academy, U.S. Citizenship & Immigration Services, Asylum Officer Basic

Training Course 2:7 (Sept. 2006) (acknowledging that facts of cases may blur when case

assessments are written at a time removed from the asylum interview, even later the same day).

22

The Ninth Circuit has recognized that “the time lapse between the gathering of the information

and its recording [on the I-213]” is an important consideration in determining whether an I-213

sustains the government’s burden. Murphy, 54 F.3d at 611. Where, as here, the I-213’s creation

lags long after the information collection with no indication that the information was otherwise

accurately recorded in the interim, the I-213 falls short of DHS’s burden.

4. The I-213 Lacks Detail.

In a case such as this, detail is key to an I-213’s ability to sustain DHS’s burden. The BIA

was careful to state in its most recent precedent decision addressing I-213s in depth:

We emphasize that while generally considered to be reliable and sufficient to establish alienage, not every Form I-213 that alleges alienage must be ultimately so found. The Service would be well advised to include as many indicia of trustworthiness regarding the information in that document as are practicable, such as the source of the information and the circumstances of the alien’s apprehension, as was done here.

Gomez-Gomez, 23 I&N Dec. at 526. This was not new: the BIA’s prior decisions “did not go so

far as to hold that any allegation of alienage in a Form I-213, however conclusory, is sufficient to

meet the Service’s burden of proof.” Id. at 526 n.5. In a notable case in which an I-213 was used

to establish a juvenile’s alienage in in absentia proceedings, the BIA was careful to note that it

was the “detailed information” in that particular form, combined with absolutely no challenge to

the use of the form itself, that sustained the government’s burden. See id. (citing Ponce-

Hernandez, 22 I&N Dec. at 786-87); see also Mejia-Andino, 23 I&N Dec. at 538 (concurrence)

(recognizing that Ponce-Hernandez relied heavily on the “detailed information” attributed to the

juvenile).

In an apparent acknowledgement of the need for details to sustain its burden in children’s

cases, DHS requires its officers to include in-depth information on juveniles’ I-213s. The

Juvenile Protocol Manual created by the Office of Detention and Removal makes clear that

23

officers “should obtain as much detailed biographical information as possible.” U.S. Dep’t of

Homeland Security, Detention and Removal Officer’s Field Manual Appendix 11-4: 2.1.1,

available at: http://www.aila.org (updated through Nov. 2003). Officers are instructed to ask the

juvenile about 12 topics, directed at the juvenile’s special vulnerabilities, that are not covered on

the I-213 form itself and to “add [the resulting information] to the narrative of the I-213 Form.”

Id. at 2.1.3.

These guidelines simply were not followed here. The I-213 does not contain much of the

basic information requested on the form itself, including information about any: (1) passport; (2)

permanent residence address; (3) city and state of birth; (4) visa; (5) Social Security number; (6)

parental addresses; or (7) FBI number. It also does not indicate, as discussed above, the complete

sources of the I-213’s information. Further, the narrative clearly does not cover the 12 topics

outlined in the Juvenile Protocol Manual. Obviously an officer need not write a novel about each

juvenile for whom he issues an I-213. But he does need to do more than was done in Richard’s

case. Under existing BIA precedent, this limited I-213 falls short of establishing his alienage.

In assessing the use of I-213s to prove alienage, the Ninth Circuit has made clear that

“[t]he burden of establishing a basis for exclusion of evidence from a government record falls on

the opponent of the evidence, who must come forward with enough negative factors to persuade

the court not to admit it.” Espinoza, 45 F.3d at 310. Richard has met his burden here: The I-213’s

dubious source, inaccuracy, temporal gap between investigation and creation, and lack of detail

should indeed persuade this Court not to credit it.

C. Even if the Court Admits the I-213, It Should Nonetheless Terminate Proceedings Because DHS Has Failed to Meet Its Burden in Light of 8 C.F.R. 1240.10(c).

Richard was only 14 years old and suffered from mental retardation when DHS

interrogated him in the Agave County Juvenile Facility on November 7, 2008. His alleged

24

admissions on that day appear to be DHS’s sole evidence of alienage. Yet under the federal

regulations, those alleged admissions should not establish Richard’s removability because of his

age and mental capacity.

8 C.F.R. 1240.10(c) provides that “the immigration judge shall not accept an admission

of removability from an unrepresented respondent who is incompetent or under the age of 18 and

is not accompanied by an attorney or legal representative, a near relative, legal guardian, or

friend . . . .” The BIA has held that an earlier version of this regulation, tagged to age 16 rather

than 18, “does not preclude an Immigration Judge from accepting such a [15 or younger] minor’s

admissions to factual allegations.” Amaya-Castro, 21 I&N Dec. at 586. Despite this holding, it

remains true that “the regulation recognizes that an unaccompanied minor . . . may lack sufficient

maturity to appreciate the significance of providing factual responses, and may lack the capacity

to evaluate the foreseeable consequences of such responses.” Ponce-Hernandez, 22 I&N Dec. at

795 (dissent).

Simply because an Immigration Judge can accept an unrepresented minor’s admissions to

factual allegations under BIA precedent does not mean he should or must in every case. The BIA

was careful to point out that “[i]f the Immigration Judge is assured that the respondent is both

capable of understanding, and in fact understands, any facts that are admitted, and that those

facts establish deportability, they may form the sole basis of a finding that the minor is

deportable” under the regulations. Id. at 587. Here, Richard has provided evidence that he was

only 14 years old and suffered from mental retardation when DHS interrogated him. He also

provided evidence that when DHS interrogated him, he did not understand that the facts

allegedly admitted regarding alienage established his removability or could be used to do so. Roe

Decl. ¶ 12. This is unsurprising, given his youth and the developmental disability that rendered

25

him cognitively younger than his actual 14 years age. Id. ¶ 2. Thus under BIA precedent,

Richard’s statements reflected on his I-213 cannot establish his alienage because the Court

cannot be assured of Richard’s ability to understand. Cf. Immigration Judge Benchbook, “Tools

for the IJ – Introductory Guides – Mental Health Issues” II.B.2 (Immigration Judge may not be

comfortable “admitting a Record of Deportable/Inadmissible Alien (Form I-213)” for a

respondent with diminished mental capacity).

Richard’s case is quite unlike that in which the BIA found a minor removable based upon

the factual admissions in his I-213 even though he was 15 years old at the time he was

interrogated. See Ponce-Hernandez, 22 I&N Dec. at 785-86. In that case, the respondent failed to

appear at his removal proceeding. The BIA found that the I-213 established his alienage and

removability, despite the federal regulation, because “there is neither an assertion nor a reason to

believe that the respondent’s age [or capacity] impeded an accurate exchange of basic

biographical information.” Id. at 787. Here, by contrast, Richard is attending his hearings. He is

asserting that his age and capacity impeded his ability to make this exchange. Roe Decl. ¶ 8.

Thus what the BIA did in an in absentia case does not govern here, where Richard has indeed

shed light on the limits of his “ability to understand any admitted facts.” Ponce-Hernandez, 22

I&N Dec. at 786 n.3.

CONCLUSION

For the reasons set forth in this Brief, the Court should grant both the Motion to Suppress

Evidence and the Motion to Terminate Proceedings. DHS has failed to meet its heavy burden to

establish Richard’s alienage. Richard asks that the Court recognize this failure and terminate the

26

case against him for lack of jurisdiction.

Dated: August 23, 2010 Respectfully Submitted, PUBLIC COUNSEL

By:___________________________ KRISTEN JACKSON Attorneys for Respondent Richard Roe

APPENDIX 1.B Reply to Motions to Suppress and Terminate (Interior Enforcement)

70

KRISTEN JACKSON (Bar No. 226255) PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA 90005 Telephone (213) 385-2977, ext. 157 Facsimile (213) 385-9089 Pro Bono Counsel for Respondent Richard Roe

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT

LOS ANGELES, CALIFORNIA

In the Matter of: ) )

) File No. A 987-654-321 Richard Roe ) ) ) In Removal Proceedings ) ___________________________________ ) Immigration Judge Kevin Riley Hearing: February 9, 2011 at 1:00 PM

REPLY IN SUPPORT OF RESPONDENT’S MOTION TO SUPPRESS EVIDENCE AND TO TERMINATE PROCEEDINGS

1

Respondent Richard Roe, through pro bono counsel, files this Reply in Support of

Motion to Suppress Evidence and to Terminate Proceedings. It is accompanied by the First

Supplemental Set of Declarations in Support of the Motion. Despite DHS’s arguments to the

contrary, the government has failed to establish Richard’s alienage and these removal

proceedings must be terminated.

STATEMENT OF FACTS

Richard’s previously-filed Motion details the facts of this case. See Respondent’s Motion

to Suppress Evidence and to Terminate Proceedings [Respondent’s Motion] at 1-3 (Aug. 23,

2010). The Court should note that DHS’s Response contains three factual errors. See Department

of Homeland Security’s Response to Motion to Terminate and Suppress [DHS’s Response] at 2,

11 (Nov. 26, 2010). First, DHS officers encountered Richard in an Agave County Juvenile

Facility on November 7, 2008 – not on December 23, 2009. See Department of Homeland

Security’s Documents Supporting Removability [I-213] at 2 (July 23, 2010). Second, DHS

prepared its Form I-213 on January 23, 2009 – not on December 23, 2009. See id. Long before

December 23, 2009, DHS had interviewed Richard, created an I-213, taken Richard into custody

and served him with an NTA. Third, contrary to DHS’s assertion, ICE officers did not have

Richard’s FBI Rap Sheet on or before November 7, 2008 – the day Richard was targeted in the

Agave County Juvenile Facility. The only FBI Rap Sheet in the A file, as confirmed by DHS

counsel, was requested on March 11, 2009, long after Richard’s 2008 interrogation. See Second

Supplemental Declaration of Kristen Jackson ¶ 2 (attached to the concurrently-filed First

Supplemental Set of Declarations in Support of Motion to Suppress Evidence and to Terminate

Proceedings at Tab D).

2

PROCEDURAL HISTORY

Richard’s previously-filed Motion details the procedural history of this case. See

Respondent’s Motion at 3-4. Three months after the filing of Richard’s Motion, DHS filed its

Response. In that Response, DHS argued that: (1) it did not violate the Fifth Amendment’s due

process standards of fundamental fairness, DHS’s Response at 2; (2) it did not violate Richard’s

Fourth Amendment rights, id. at 6; (3) it did not violate 8 C.F.R. § 287.3(c), id. at 9; and (4) it

did not violate the California Welfare and Institutions Code, id. at 10. DHS also attached a Form

I-200 Warrant for Arrest of Alien to its Response. This Reply now follows.

STATEMENT OF THE ISSUE

Whether DHS has established, as it must, Richard’s alienage by clear, unequivocal and

convincing evidence.

STATEMENT OF THE BURDEN OF PROOF

DHS bears the burden of establishing Richard’s alienage by “clear, unequivocal and

convincing evidence.” See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir.

2005) (citing Woodby v. INS, 385 U.S. 276, 286 (1966)).1 This is a significant threshold issue, as

alienage triggers this Court’s jurisdiction. See INA § 240(a)(1) (“An immigration judge shall

conduct proceedings for deciding the inadmissibility or deportability of an alien.” (emphasis

added)); see also Murphy v. INS, 54 F.3d 605, 609 (9th Cir. 1995). If DHS fails to come up with

this exacting evidence of alienage, removal proceedings must be terminated. Id.

1 Language in some BIA and Ninth Circuit opinions suggest that the evidence need only be “clear and convincing” but not “unequivocal.” Whichever standard is used, unequivocal or not, the result is the same: DHS cannot meet its burden of proving Richard’s alienage.

3

SUMMARY OF THE ARGUMENT ON REPLY

DHS has not rebutted Richard’s arguments that its I-213 cannot establish Richard’s

alienage. Oddly, DHS argues that the Fourth Amendment does not justify the I-213’s

suppression – but Richard never argued that it did. Similarly, DHS argues that it did not violate 8

C.F.R. § 287.3(c) – but Richard never argued that it did. DHS addresses Richard’s Fifth

Amendment arguments, but cannot undercut them. Although DHS tries to slice and dice and

explain away constitutional and regulatory violations, it fails. For the reasons set forth in

Richard’s Motion and this Reply, the Court should terminate proceedings against Richard for

lack of jurisdiction.

ARGUMENT ON REPLY I. DHS’s Argument Regarding the Fourth Amendment Should Be Disregarded DHS spends significant time arguing that it did not violate Richard’s Fourth Amendment

rights and thus exclusion is unwarranted. See DHS’s Response at 6-9. Richard did not, however,

argue that he was entitled to suppression of the I-213 on Fourth Amendment grounds – rather,

his constitutional arguments are rooted in the Fifth Amendment. See Respondent’s Motion at 6-

17. As a result, the Court can disregard this portion of DHS’s Response.

II. DHS’s Argument Regarding 8 C.F.R. § 287.3(c) Should Be Disregarded

DHS devotes a page to arguing why it did not violate 8 C.F.R. § 287.3(c). See DHS’s

Response at 9. Richard explicitly conceded that DHS did not violate this regulation. See

Respondent’s Motion at 16 n.3. As a result, the Court can also disregard this portion of DHS’s

Response.

4

III. DHS’s Remaining Arguments Fail to Undermine Richard’s Claims

In its six remaining pages of argument, DHS attempts to refute some of the many points

that Richard presented in his Motion. Each attempt, as addressed below, fails. Try as it might,

DHS cannot prove Richard’s alienage through its defective I-213.

A. Richard Has Provided Sufficient Evidence in Support of His Motion

As DHS correctly states, Richard bears the burden of establishing a basis for the

exclusion of evidence from the record by “com[ing] forward with enough negative factors to

persuade the court not to admit it.” Espinoza v. INS, 45 F.3d 308, 1995 U.S. App. LEXIS 7699 at

*8 (9th Cir. 1995). He must provide “proof [through testimony] establishing a prima facie case

before [DHS] will be called on to assume the burden of justifying the manner in which it

obtained evidence.” Matter of Barcenas, 19 I&N Dec. 609, 611 (BIA 1988) (internal quotations

and citation). Thus, on paper, Richard must simply present information that “if true, could

support a basis for excluding the evidence in question.” Id.; see also Matter of Velarde-Pacheco,

23 I&N Dec. 253, 262 (BIA 2002) (concurrence) (noting a prima facie showing is made “when

the facts asserted, if later proven in a full hearing, would establish eligibility under the statutory

standard”). Richard has done just that.

DHS complains that Richard has made a “blanket statement” that he suffers from mental

retardation but “he has offered no evidence whatsoever to substantiate this fact.” DHS’s

Response at 3, 5. DHS is wrong. Richard has provided his own sworn statement about his mental

capacity, its effects on him, and his attendance at a Regional Center and special school.

Declaration of Richard Roe ¶ 2 (attached to the previously-filed Declarations in Support of

Motion to Suppress Evidence and to Terminate Proceedings at Tab B). This statement was

prepared with the assistance of counsel, carefully reviewed with Richard, and knowingly and

5

voluntarily made. Second Supp. Jackson Decl. ¶ 3. Ms. Jackson is not simply asserting a fact

without evidence or presenting a “general” or “conclusory” statement. Cf. Matter of Ramirez-

Sanchez, 17 I&N Dec. 503, 506 (BIA 1980) (only evidence of involuntariness of a statement was

counsel’s argument unsupported by any statement from the respondent); Matter of Toro, 17 I&N

Dec. 340, 343 (BIA 1980) (only information regarding involuntariness was counsel’s statement

that the respondent “‘was intimidated into revealing some information on the I-213’”). Thus

DHS’s urging the Court to “give this statement [regarding mental retardation] very little weight”

should not be heeded. DHS’s Response at 3.2

DHS also complains that Richard is attempting to establish his case through “pure

speculation and conjecture” regarding the use of information from Richard’s juvenile court

proceedings. DHS’s Response at 5, 10. Yet DHS cites no authority for the proposition that a

respondent must definitely prove the disputed source of information or definitely establish the

alleged violation of law in order to meet his burden. Indeed, a key Ninth Circuit case makes clear

that this is not required – not even at a full removal hearing. See Murphy, 54 F.3d at 612

(vacating a removal order for the government’s failure to establish alienage because, among

other reasons, the “homeless, uneducated and illiterate” respondent claimed that the key

information on his I-213 came from “an INS ‘snitch;” while he was unable to produce

documentary or testimonial evidence corroborating his statements, the government provided no

witness to verify the source of the information and the respondent accordingly undermined the I-

213’s reliability). Here, Richard did not authorize information about himself to be turned over to

2 While DHS might wish for something more, nothing else is now available. Richard has no independent records of his diagnosis. Second Supp. Jackson Decl. ¶ 4. Under California law, Ms. Jackson is not authorized to disclose information regarding, much less provide copies of, any documents “substantiating” Richard’s disability. Nor may she even address whether such records are found in Richard’s juvenile case file. See id ¶ 5.

6

DHS, but undoubtedly it was, as a DHS officer came to interview him in the Agave County

Juvenile Facility. Roe Decl. ¶¶ 4-7. That Richard cannot prove with certainty precisely how this

happened does not defeat his claim.

B. DHS Had No Independent Evidence of Richard’s Alienage and Its Targeting of Him Was Based on Information Released in Violation of California Law

As the first of his claims why the Fifth Amendment justifies suppression of the I-213,

Richard argues that DHS used information about him that was released in violation of California

law, thus offending notions of fundamental fairness. Respondent’s Motion at 7-11. In response,

DHS argues that it did not violate California & Institutions Code and, regardless, ICE officers

“were in possession of respondent’s FBI Rap Sheet which listed the respondent’s country of birth

as Mexico” and were thus justified in questioning Richard because “they had independent

evidence that suggested the respondent was a native and citizen of Mexico.” DHS’s Response at

11. Neither of these assertions defeat Richard’s claim.

First, and easiest to address, ICE officers did not have Richard’s FBI Rap Sheet on or

before November 7, 2008 – the day Richard was targeted in the Agave County Juvenile Facility.

The only FBI Rap Sheet in the A file, as confirmed by DHS counsel, was requested on March

11, 2009, long after Richard’s 2008 interrogation. See Second Supp. Jackson Decl. ¶ 2. As a

result, it is impossible that this FBI Rap Sheet provided “reasonable suspicion, based on

articulable facts, that [Richard] is an alien illegally in the United States” as DHS contends.

DHS’s Response at 11. Thus we are left where we began, with Richard’s arguments involving

the release of information in violation of California law.

As DHS did not have independent evidence suggesting Richard’s alienage, there is no

question that information related to Richard’s juvenile case was released to DHS prior to

Richard’s November 7, 2008 interview. Richard was inside a locked Agave County Juvenile

7

Facility because of his juvenile arrest and his pending juvenile case. DHS had no way to know

that Richard was there absent a release of information – whether that information was provided

at a local source’s own initiative or at DHS’s request.3

DHS misapprehends the scope of California law’s protections of information gathered in

connection with a juvenile case. Information about a juvenile gathered in the course of a case –

whether that be a name, date of birth, country of birth, or charging information – is protected, as

are the documents that are found either in the juvenile case file or created in connection with a

juvenile case. See, e.g., T.N.G. v. Superior Court, 4 Cal. 3d 767, 780-81 (1971); see also Cal. Ct.

R. 5.552(a)(4) (providing that the juvenile case file includes “[d]ocuments relating to a child

concerning whom a petition has been filed in juvenile court that are maintained in the office files

of probation officers”). These items are protected from dissemination under California Welfare

& Institutions Section 827(a)(4).

DHS is incorrect that “nothing in the California Welfare and Institutions Code [] would

preclude obtaining information related to a juvenile from sources other than the case file.”

DHS’s Response at 11. Indeed, California law’s protections extend to law enforcement agencies

not directly connected to the juvenile court. See T.N.G., 4 Cal. 3d at 781 (“Police records in this

regard become equivalent to court records and remain under the control of the juvenile court.”);

Cal. Welf. & Inst. Code § 827.9(a) (related to Los Angeles County) (“It is the intent of the

Legislature to reaffirm its belief that records or information gathered by law enforcement

3 DHS suggests that it is Richard’s “belief that the officers who questioned the respondent could have only obtained information related to him by a review of his juvenile file, in violation of California Welfare and Institutions Code.” DHS’s Response at 10 (emphasis added). This is not true. While this is one way that the information could have been gained, it was not the only way posited. Indeed, Richard’s Motion makes clear that a violation would have occurred, equally, if someone connected to Richard’s juvenile case provided information about him to DHS. Respondent’s Motion at 10-11.

8

agencies relating to the taking of a minor into custody, temporary custody, or detention (juvenile

police records) should be confidential.”) (emphasis added); Cal. Ct. R. 5.552(f) (requiring filing

of JV-575 with the juvenile court to obtain information gathered by a law enforcement agency

regarding the taking of a minor into custody); cf. Cal. Welf. & Inst. Code § 828(a) (allowing

disclosure of information gathered by a law enforcement agency regarding the taking of a minor

into custody to other law enforcement agencies “for purposes of official disposition of a case” –

not for the initiation of a case).

DHS argues, in a heading, that it did not violate the California Welfare & Institutions

Code. DHS’s Response at 10. Yet it is important to note that DHS does not actually address,

aside from this heading, that the method of identifying and targeting juveniles does not violate

California law. Indeed, DHS counsel states that she cannot “speak specifically” to procedures

used at a juvenile facility. Id. at 11. Regardless, it is the use of information released in violation

of California law – whether the violation was on DHS’s own part or on the part of the Agave

County Probation Department in releasing the information – that clearly justifies excluding the I-

213 on Fifth Amendment grounds.

C. Richard’s Statements to DHS Were Involuntary Given the Totality of the Circumstances

Richard has provided the Court with complete factual and legal support for his claim that

his statements to the DHS officer were involuntary and therefore, under the Fifth Amendment,

cannot be used in these removal proceedings. Respondent’s Motion at 11-15. In turn, DHS

essentially argues that the situation Richard encountered was not bad enough – that there is no

indication he was “held for an unreasonable amount of time,” or that the officer “handcuffed”

Richard, or that the officer “displayed a weapon” or “used any type of force” or “violence.”

9

DHS’s Response at 4, 8. DHS misses the point. Fifth Amendment analysis does not happen in a

vacuum, but instead must incorporate Richard’s own characteristics and pertinent authority.

DHS makes a bald statement that Richard’s affidavit does not support the claim that his

interrogation was plagued by coercion and duress. DHS’s Response at 4. Yet DHS cites not a

single case for this proposition. It notes that Richard did not allege that the DHS officer

interrogated him for a long time, handcuffed him, displayed a weapon, or used force, but

provides no legal authority to show this is required. This absence of authority is particularly

notable given that Richard was a 14 year old with diminished capacity, and the U.S. Supreme

Court has repeatedly recognized that the voluntariness of minors’ admissions is judged

differently from that of adults. See Gallegos v. Colorado, 370 U.S. 49, 54 (1962); Haley v. Ohio,

332 U.S. 596, 599 (1948). Richard had been threatened with deportation, he felt that he had no

choice but to answer the DHS officer’s questions, and a key DHS regulation was not followed, as

outlined in the next Section. Roe Decl. ¶¶ 6, 9, 11. This suffices.

BIA and Ninth Circuit case law makes this clear. In Matter of Garcia, the Board found

that the respondent had come forward with a prima facie case that his admissions were

involuntary and thus excluded under the Fifth Amendment. 17 I&N Dec. 319, 321 (BIA 1980).

There was no indication that the immigration officer displayed a weapon, used force, or

perpetrated violence. Id. Although the respondent initially was handcuffed, this did not factor

into the Fifth Amendment analysis. Id. at 320-21. Instead, the Board looked to the wearing down

of the respondent’s resolve, his “giv[ing] up all hope” of speaking with his lawyer or remaining

in the United States, and his sense that he had no rights and did not know why he was in

10

custody.4 Id. at 321. Notably, at that time the respondent was either 17 or 18 years old. See id. at

319 (respondent was arrested in August 1977 and was 20 years old in January 1980). If these

facts violated the Fifth Amendment rights of an older youth with no articulated mental disability,

the circumstances of Richard’s interrogation clearly violated his.

Likewise, in Choy v. Barber, 279 F.2d 642, 647 (9th Cir. 1960), the Ninth Circuit

concluded that the respondent’s incriminating statements were involuntary and thus violated due

process. Again, there was no indication that the immigration officer displayed a weapon, used

force, or perpetrated violence. Id. Instead, the focus was on the respondent’s mental state as it

was affected by a lengthy interrogation and threats of deportation and prosecution. Id.

(mentioning the respondent was “weary and distressed” and experienced “mental terror”). The

respondent was a Korean adult, more sophisticated and capable than Richard. See id. at 643

(Choy had a master’s degree in political science from the University of California, translated and

taught Japanese for the U.S. government, and worked for the War Department). If such a

respondent was forced into involuntary statements through the type of interrogation he suffered,

so too was Richard. See id. at 646 (noting that Choy was “highly-educated” and did not suffer

the degree of intimidation meted out to others, yet nonetheless merited exclusion of his

statements).5 Guided by Garcia and Choy, the Court should find that Richard’s statements to the

DHS officer were involuntary and thus inadmissible.

4 The Board noted not the length of the respondent’s interrogation, but that a “significant period of custody had elapsed.” Id. Here, Richard has not alleged that his interrogation went on for hours. At that time, however, he had been in the locked Agave County Juvenile Facility awaiting adjudication for roughly a year. Roe Decl. ¶¶ 4-5. This extended period of custody, although not DHS custody, is relevant to Richard’s state of mind and the voluntariness of his statements. 5 Generally, published cases in which no involuntariness was found involved either a lack of detailed evidence or non-custody situations. See, e.g., Cuevas-Ortega v. INS, 588 F.2d 1274, 1278 (9th Cir. 1979) (no evidence of involuntariness where the respondent went to an INS office with her husband and made a statement); Barcenas, 19 I&N Dec. at 610 (no evidence of coercion

11

D. Richard Was “Apprehended” on November 7, 2008 and DHS Violated 8 C.F.R. § 236.3(h) by Failing to Provide Him an I-770 That Day

Richard has established that under the Fifth Amendment regulatory exclusionary rule, as

outlined by the Ninth Circuit in Chuyon Yon Hong v. Mukasey, 518 F.3d 1030, 1035 (9th Cir.

2008), the I-213 should not be admitted into evidence. Respondent’s Motion at 15-17.

Specifically, Richard argues that DHS violated 8 C.F.R. § 236.3(h) by failing to provide him an

I-770 on the day he was apprehended by DHS – November 7, 2008.6 DHS does not dispute that

Richard lacked an I-770 on November 7, 2008 or that not having one that day prejudiced him.

Instead, DHS argues that Richard was not apprehended until March 11, 2009. Thus, the question

comes down to what day Richard was “apprehended” for purposes of this regulation. The I-213

itself as well as Ninth Circuit and BIA decisions make clear that November 7, 2008 was the day

DHS “apprehended” Richard.

Essentially, DHS argues that “apprehended” means “arrested.” Yet the I-213 itself refutes

this claim; it designates Richard’s “apprehension” as November 7, 2008. The “method of

location/apprehension” is designated as “CLC 520.3” and the date/hour is listed as “11/07/2008

0920.” See I-213 at 1. Further, the narrative regarding the “particulars” of how Richard was

“located/apprehended” lists the interview on November 7, 2008 inside the Agave County

Juvenile Facility. See id. at 2. Thus, DHS itself designated the 2008 interview – not the March

11, 2009 arrest – as an “apprehension.”

or duress where officer approached respondent in front of a bus stop and questioned him); Ramirez-Sanchez, 17 I&N Dec. at 506 (no evidence of involuntariness where statements were counsel’s and even if they had been respondent’s, they lacked relevant factual detail); Toro, 17 I&N Dec. at 343 (no evidence of involuntariness where counsel simply stated that the respondent “was intimidated into revealing some information on the I-213”). 6 As spelled out in Richard’s Motion, the regulation provides in part that “[w]hen a juvenile alien is apprehended, he or she must be given a Form I-770, Notice of Rights and Disposition.” 8 C.F.R. § 236.3(h).

12

Additionally, both the Ninth Circuit and the BIA have used language, in multiple cases,

to indicate that “apprehended” and “arrested” are distinct terms. See United States v. Higuera-

Llamos, 574 F.3d 1206, 1210 (9th Cir. 2009) (discussing defendant’s “admission of alienage at

the time of apprehension and arrest” by border patrol agents); United States v. Galindo-Gallegos,

244 F.3d 728, 2001 U.S. App. LEXIS 4891 at *11 (9th Cir. 2001) (noting legal significance

where border patrol agents “apprehend a substantial number of suspects and question them in the

open prior to arrest”) (emphasis added); United States v. Orbino, 981 F.2d 1035, 1036 (9th Cir.

1992) (describing defendant being “apprehended” by local law enforcement prior to an INS

“arrest”); see also Matter of V, 1 I&N Dec. 293, 298 (BIA 1942) (“He drove them back to

Douglas, Ariz., where they were apprehended and arrested.”). Notably, former Board Member

Rosenberg made this distinction in a case involving the alienage of a minor. See Matter of

Ponce-Hernandez, 22 I&N Dec. 784, 792 (BIA 1999) (dissent) (referring to a minor’s being

“apprehended and arrested”). In these cases, the term apprehension is understood to be an act

prior to arrest – just as here DHS’s locating Richard and interviewing him was prior to DHS’s

taking him into its custody. Richard was entitled to an I-770 on November 7, 2008, and DHS’s

failure to provide one justifies exclusion of the I-213.

E. DHS Cannot Shore Up the Fatal Flaws Inherent in the I-213

Richard has demonstrated, regardless of the Court’s rulings on the Fifth Amendment

issues outlined above, that the I-213 cannot meet minimal evidentiary standards and is inherently

unreliable because of its dubious source, inaccuracy, temporal gap between interrogation and

creation, and lack of detail. Respondent’s Motion at 18-24. DHS has not refuted the latter two

13

grounds. Instead, it argues only that the source is known and the errors immaterial. It is

incorrect.7

First, Richard has stated clearly that he was not the source of much of the information on

the I-213. Specifically, at a minimum, he provided no information on any arrest, street gang

membership, aliases, military status, address or phone number. See Roe Decl. ¶ 13. Yet the I-213

contains this information. It reflects details of an arrest and alleged gang affiliation, it lists an

alias, it comments on military status, and it provides an address and phone number in Agave

County. Thus, if Richard did not provide this information, and it is on the I-213, then there

undoubtedly is another source. This is not “pure speculation and conjecture,” regardless of what

that other source might be. That Richard’s case is not a mirror image of Hernandez-Guadarrama

is not dispositive. Although it is true that in Hernandez-Guadarrama the I-213’s information

came from two identified third parties rather than the respondent, the case nonetheless holds that

source is crucial to an I-213’s admissibility. See 394 F.3d at 680. This is particularly important

when the source is disputed. In Murphy v. INS, a case relied upon by Richard, cited by the

Hernandez-Guadarrama Court, and ignored by DHS, the respondent alleged a source of

information on the I-213 – an “INS informant” – that was not established. See 54 F.3d at 610.

The Ninth Circuit held that the I-213’s indicia of untrustworthiness, underscored by no

government witness “to verify the source of the information,” meant that it could not constitute

clear and convincing evidence of alienage. Id. at 611-12. The same is true of DHS’s I-213 here.

Second, Richard has provided evidence that the I-213 contains errors specific to him;

these errors go directly to who he is and his fundamental characteristics. The I-213 contains,

7 Even were the Court to agree with DHS’s arguments regarding the I-213’s source or errors, the other undisputed factors – the temporal gap and the lack of detail – continue to justify not admitting the I-213 into evidence. See Respondent’s Motion at 21-24.

14

among other errors, an incorrect date of birth, incorrect complete name and spelling and an

incorrect alias for Richard. Roe Decl. ¶¶ 15-16, 19. DHS does not dispute that the I-213 contains

errors. Instead, it argues that the errors are immaterial. Its position leaves only one conclusion: A

material error in DHS’s eyes can be only an error in place of birth. Yet DHS cites nothing to

support this proposition. In case after case, the BIA has “consistently held” that one test of an I-

213’s admissibility is whether there is “any evidence that a Form I-213 contains information that

is inaccurate.” Matter of Gomez-Gomez, 23 I&N Dec. 522, 524 (BIA 2002) (citing Ponce-

Hernandez and Barcenas). Although not every error will go to the heart of an I-213’s purpose,

see Espinoza, 1995 U.S. App. LEXIS 7699 at *12, errors in who the subject of the form is –

errors in his identity – clearly do. See Ponce-Hernandez, 22 I&N Dec. at 786 n.3 (determining

whether the “facts reflected on the Form I-213 adequately establish the respondent’s identity and

alienage”) (emphasis added). The errors in the I-213 go to Richard’s identity and clearly

undercut the document’s reliability. It cannot sustain DHS’s burden.

F. DHS’s Evidence-Based Argument Against the Implications of 8 C.F.R. § 1240.1(c) Fails as Richard Has Indeed Provided Sufficient Indication of His Inability to Comprehend

Richard has argued that the Court’s accepting the I-213 to establish removability would

violate the principles underlying 8 C.F.R. § 1240.1(c). Respondent’s Motion at 24-25. DHS’s

sole response is that Richard has not provided “substantiation” of his mental retardation – and,

thus, presumably there is no basis upon which the Court would be barred from using the

statements reflected in the I-213 as the only ground for finding Richard removable under the

regulation. Cf Matter of Amaya-Castro, 21 I&N Dec. 583, 587 (BIA 1996). As demonstrated

above, however, Richard has provided evidence of his mental retardation in the form of his own

declaration. Regardless, iron-clad proof of incapacity is not required by BIA precedent – indeed,

15

the Board specifically stated that it would rely upon an I-213 to establish removability because

there was “neither an assertion nor a reason to believe” that a minor’s characteristics impeded an

exchange of basic information. Ponce-Hernandez, 22 I&N Dec. at 787 (emphasis added). Here,

there is an assertion, a reason to believe, and indeed evidence of Richard’s incapacity. As a

result, the Court cannot rely upon any factual admissions by Richard – unrepresented, 14 years

old and suffering from mental retardation when DHS interrogated him – that may be reflected on

the I-213 to establish his removability.

CONCLUSION

For the reasons set forth in this Reply and Richard’s previously-filed Motion, the Court

should grant the Motion to Suppress Evidence and to Terminate Proceedings. DHS has failed to

meet its heavy burden to establish Richard’s alienage. Richard asks that the Court recognize this

failure and terminate the case against him for lack of jurisdiction.

Dated: January 25, 2011 Respectfully Submitted, PUBLIC COUNSEL

By:___________________________ KRISTEN JACKSON Attorneys for Respondent Richard Roe

APPENDIX 1.C Sample Motion to Terminate (Border Enforcement)

87

APPENDIX 1.D Addendum to Motion to Terminate (Border Enforcement)

107

Addendum to Motion to Terminate For those litigating improper treatment in extremely cold rooms, consider using material from the following articles and reports:

https://www.documentcloud.org/documents/1377704-544f3e9ad7ba4-1.html

Blake Gentry, Deprivation Not Deterrence report on CBP in short-term detention, by the Guatemala Acupuncture and Medical Aid Project, October 2014 (based on interviewing 33 families held in short-term detention from May to June 2014).

http://forms.nomoredeaths.org/abuse-documentation/a-culture-of-cruelty/

No More Deaths 2011 report (out of 13,000 migrants surveyed, more than half reported inhumane conditions in temporary holding cells with extreme cold being the most common complaint; mistreatment often appeared to qualify as psychological abuse under UN definitions; documented over 30,000 incidents of abuse of adult and child immigrants)

http://aijustice.org/the-hieleras-a-report-on-human-civil-rights-abuses-committed-

by-u-s-customs-border-protection-2/ Americans for Immigrant Justice August 2013 report, The "Hieleras": A Report on Human & Civil Rights Abuses Committed by U.S. CBP (CBP Texas Rio Grande Valley Sector cells so cold that detainees' fingers and toes turn blue, their lips chap and split, and CBP staff refer to the cells as hieleras or iceboxes; sleeping on cold floors especially difficult because bright overhead lights kept on around the clock)

https://www.aclu.org/capital-punishment-criminal-law-reform-human-rights-

immigrants-rights-national-security-prisoners-ri American Civil Liberties Union Shadow Report to the 3rd-5th Periodic Reports of the United States, Submitted to the 53rd Session of the UN Committee Against Torture at 52 (Oct. 20, 2014) (reporting the June 2014 complaint to DHS based on 116 cases of abhorrent treatment of unaccompanied minors at border patrol stations).

http://www.acluaz.org/sites/default/files/documents/DHS%20Complaint%20re%2

0CBP%20Abuse%20of%20UICs.pdf. Complaint to Department of Homeland Security, Office of Civil Rights and Civil Liberties and Office of Inspector General, Regarding Systemic Abuse of Unaccompanied Immigrant Children by U.S. Customs and Border Protection (June 11, 2014)

http://bit.ly/1o2RT4B

National Immigrant Justice Center, Unaccompanied Immigrant Children: A Policy Brief (January 2014). The Policy Brief was based on consultations with 224 children held in Chicago-area ORR shelters in December 2013 and January 2014. 71% of children reported being held in hieleras or iceboxes.

http://www.theguardian.com/us-news/2015/jan/26/migrant-children-border- patrol-ice-boxes Ed Pilkington, The Guardian, 'It was cold, very cold': migrant children endure border patrol 'ice boxes,' Jan. 26, 2015.

http://www.theguardian.com/us-news/2014/dec/12/migrants-face-brutal-

conditions-after-capture-sleep-deprivation Ed Pilkington, The Guardian, Freezing cells and sleep deprivation: the brutal conditions migrants still face after capture, Dec. 12, 2014.

APPENDIX 2.A Redacted I-770 (English)

110

APPENDIX 2.B Redacted I-770 (Spanish)

113

APPENDIX 3.A Sample Motions to Terminate Based on I-770 and Order Granting Motion

116

APPENDIX 3.B Sample Motions to Terminate Based on I-770 and Order Granting Motion

122

Jennifer Casey, Esq. KOLKO & ASSOCIATES, P.C. 303 East 17th Avenue, Suite 585 Denver, CO 80203 Phone: (303) 371-1822 Fax: (303) 373-1822 jc@kolkoassociates.com Attorney for Respondent

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT DENVER, COLORADO

In the Matter of: ) ) File No. A ) ) Respondent ) ______________________________) Immigration Judge Mimi Tsankov Hearing Date:

RESPONDENT’S MOTION TO TERMINATE REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE OF IMMIGRATION REVIEW

IMMIGRATION COURT DENVER, COLORADO

In the Matter of: ) ) ) File No. A ) ) Respondent ) _________________________________________ )

TABLE OF CONTENTS

Tab Page

Motion to Terminate Removal Proceedings 1-11

A) Form I-770 (dated September 11, 2013) 12-13

B) Sworn Statement of Respondent [with certified English Translation] 14-15

C) Proof of Service. 16

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT DENVER, COLORADO

In the Matter of: ) A

) ) ) Motion to Terminate Removal Proceedings

) ) Respondent ) Honorable Judge Tsankov ____________________________________)

RESPONDENT’S MOTION TO TERMINATE REMOVAL PROCEEDINGS

I. Introduction

Respondent, by and through KOLKO & ASSOCIATES, P.C. and JENNIFER CASEY,

ESQ., hereby respectfully moves this Honorable Court grant Respondent’s Motion to

Terminate Removal Proceedings.1

Respondent respectfully asserts that the Department of Homeland Security’s (DHS or

Department) failure to comply with Sections 236.3(h) and 1236.3(h) of Title 8 of the Code of

Federal Regulations (CFR) is a violation of the Respondent’s right to fundamental fairness and

due process of law and therefore mandates termination of the instant removal proceedings.

1 As argued in Respondent’s ************ Motion to Terminate Removal Proceedings, Respondent maintains that under 8 CFR § 1003.14 this Court does not have jurisdiction over the instant proceedings due to the Department of Homeland Security’s (DHS or Department) failure to comply with the Notice requirements under INA § 239 and 8 CFR §§ 1003.13, 103.2(c)(2)(ii). However, in light of the Court’s determination that jurisdiction is proper before the Court, Respondent asserts that termination is mandated for the Department’s failure to adhere to constitutionally required regulatory obligations.

In light of the foregoing, Respondent respectfully requests this Honorable Court to

terminate removal proceedings.

II. Statement of the Case

Respondent is currently a fifteen (15) year old child. In early September of 2013,2

Respondent was apprehended by DHS officials near Hidalgo, Texas. At the time of his

apprehension, Respondent spoke only his native language of Spanish.

Respondent asserts that he was apprehended by DHS near the U.S./Mexico Border. See

Tab B. Respondent asserts that immediately after his apprehension he was taken to a “hielera” –

a very cold holding cell. See Tab B. At this time, he was forced to remove most of his clothes,

he was crying and afraid. See Tab B.

Respondent was subsequently transferred to a second “hielera.” See Tab B. At this

location, Respondent was questioned by DHS officials in a mixture of Spanish and English about

his reasons for traveling to the United States. When Respondent stated that he traveled to the

United States because he was fleeing gangs that had threatened him and his grandmother, he was

laughed at by DHS officials and told that he needed a better reason than that and was repeatedly

questioned about the “real reason” he came to the United States. See Tab B.

The DHS officials questioning Respondent told him that he was required to sign papers

that they put in front of him. See Tab B. Respondent explicitly asked whether he was required

to sign the papers. See Tab B. In response to his question, a DHS official informed him that he

2 The Respondent is uncertain of the actual date of his apprehension by DHS authorities, the date is likely on or around September 10, 2013 or September 11, 2013. The NTA (Form I-862), Notice of Rights (Form I-770), Record of Deportable/Inadmissible Alien (Form I-213) are all dated September 11, 2013. Respondent was fourteen (14) years of age on the date of his apprehension by DHS.

was required to sign the papers and that if he did not sign the papers, he would be kept in the

“hielera” for a long time and he would be deported. See Tab B.

The DHS officials did not read any of the papers to Respondent. See Tab B.

The DHS officials did not give the papers to Respondent for him to read prior to signing.

See Tab B.

Respondent was not permitted to sit down or review any of the papers or documents

before he signed. See Tab B.

Respondent was forced to remain standing and the DHS officials pointed to every place

on a variety of papers where he was supposed to sign. See Tab B.

Respondent recalls signing his initials “ABC.” where the DHS officer pointed. See Tab

B. Respondent’s Alien File contains a Notice of Rights/Aviso de los Derechos y Disposicion

(Form I-770 – Spanish language version) dated September 11, 2013 that bears Respondent’s

initials “ABC.” See Tab A.

After Respondent signed the documents that DHS indicated were required, Respondent

was provided with some juice and then transferred to a third “hielera.”

The Department did not provide Respondent with a copy of any of the papers or

documents he signed at this time. See Tab B.

On September 13, 2013, Respondent was transferred to the custody of U.S. Department

of Health & Human Services’ (HHS) Office of Refugee Resettlement (ORR) in Harlingen,

Texas. On September 16, 2013, DHS filed a Notice to Appear (NTA) with the Harlingen, Texas

Immigration Court.

On September 25, 2013, Respondent was released to the custody of his father. Upon his

release from ORR custody, ORR provided Respondent with a packet that included a copy of the

Notice to Appear (Form I-862) and Notice of Rights (Form I-770). Prior to September 25, 2013,

Respondent had neither seen, nor had the opportunity to read or review either of these

documents. See Tab B.

III. Legal Discussion

Removal proceedings shall be invalidated where the government fails to comply with its

regulatory obligation if the regulation was enacted to benefit the Respondent and if the

Respondent is prejudiced by the regulatory violation. See Matter of Garcia-Flores, 17 I&N Dec.

325 (BIA 1980). In cases where compliance with the regulation is mandated by the Constitution,

prejudice may be presumed. Id. at 328 (emphasis supplied). See also Waldron v. INS, 17 F.3d

511, 581 (2d Cir. 1993) (when a regulation protects a fundamental right derived from the

Constitution or a federal statute, and the [DHS] fails to adhere to it, the challenged deportation

proceeding is invalid and a remand to the agency is required).

In the instant case, removal proceedings must be terminated because DHS failed to

adhere to the regulatory requirement for providing Respondent with a Notice of Rights and

Disposition (Form I-770) as required by 8 CFR §§ 236.3(h), 1236.3(h). The regulations at issue

serve the purpose of benefitting Respondent. Further, prejudice to Respondent is presumed

because adherence to the regulation is mandated under the Due Process Clause of the U.S.

Constitution.

A. Removal Proceedings must be terminated because the Department failed to comply

with its constitutionally mandated obligations under 8 CFR §§ 236.3(h), 1236.3(h) to give to and explain to Respondent his Notice of Rights and Disposition (Form I-770) at the time of his apprehension.

1. DHS’s provision of Form I-770 Notice of Rights and Disposition to juveniles is

required under 8 CFR §§ 236.3.(h) and 1236.3(h).

Sections 236.3(h) and 1236.3(h) of Title 8 of the CFR require the DHS to provide all

juveniles with a Notice of Rights and Disposition (Form I-770). This Notice of Rights provides

the juvenile alien with an explicit notice that although he has been arrested by DHS, he has

certain rights that he cannot be denied. Those rights include the right to use the telephone to call

a parent or other adult relative; the right to speak with a lawyer; and the right to a hearing in front

of an immigration judge. See Tab A.

Sections 236.3(h) and 1236.3(h) (2014) provide:

“When a juvenile3 alien is apprehended, he or she must be given a Form I-770, Notice of Rights and Disposition. If the juvenile is less than 14 years of age or unable to understand the notice, the notice shall be read and explained to the juvenile in a language he or she understands.” 8 CFR §§ 236.3(h), 1236.3(h) (emphasis supplied).

The Regulations explicitly dictate the form and manner in which the Notice of Rights

must be provided to the juvenile. See 8 CFR §§ 236.3(h), 1236.3(h). First, DHS must give the

Notice of Rights and Disposition to the juvenile. Id. Second, if the juvenile is under 14, DHS

shall read and explain the Notice of Rights to the juvenile in a language that he or she

understands. Id. Furthermore, regardless of the juvenile’s age, if the juvenile is unable to

understand the Notice of Rights, DHS shall read and explain the Notice of Rights to the

juvenile in a language that he or she understands. Id.

The Regulations mandate that an apprehended juvenile be given this Notice of Rights

when he is apprehended (i.e., at the time of apprehension) in order to ensure that the juvenile is

aware of his rights before making any statements or signing any documents that could be

prejudicial to the juvenile. See 8 CFR §§ 236.3(h), 1236.3(h).

Importantly, as evidenced by the plain language of the Regulation and the use of the 3 A “juvenile” is an alien under the age of 18 years. 8 CFR §§ 236.3(a), 1236.3(a) (2014).

terms “must” and “shall,” Department compliance with this regulation is not discretionary or

optional, it is required. See id.

2. The Regulations at 8 CFR §§ 236.3.(h) and 1236.3(h) serve the purpose of benefitting Respondent.

The regulatory and judicial history behind this regulation confirms that the regulation was

implemented in order to protect the due process rights of children in deportation proceedings and

thus benefit Respondent and those similarly situated. The legacy Immigration and Naturalization

Service’s (INS) initially published the Notice of Rights regulatory provision on May 1, 1988 as

8 CFR § 242.24(h). See 53 Fed. Reg. 17449, 17450 (May 17, 1988), 8 CFR §§ 242.24 (1988).4

The preamble to Section 242.24 articulates the INS’s paramount concern of the welfare of

minors in Service custody. See 53 Fed. Reg. 17449, 17450 (May 17, 1988). The U.S. Supreme

Court also noted that the explicit purpose of section 242.24 is to “protect the welfare of the

juvenile.” Reno v. Flores, 507 U.S. 292, 311 (1993) (internal citations omitted).

Further, with respect to subsection (h) of Section 242.24, the Service directly

incorporated language from the Court Order in Perez-Funez v. District Director, INS, 619 F.

Supp. 656 (D.C. Cal, 1985) into the regulation. In that case, the court ordered the legacy INS to

provide certain specific advisals to unaccompanied children including a simplified notice of their

rights. See Perez-Funez, INS, 619 F. Supp. at 669. Those specific advisals were then

incorporated into the 8 CFR § 242.24(h) in 1988. See 53 Fed. Reg. 17449, 17450 (May 17,

1988).

Indeed, the regulatory framework which includes 8 CFR § 236.3 (formerly 8 CFR §

242.24) contemplates that no minor alien under age eighteen should be presumed responsible for

4 On March 6, 1997, 8 CFR § 242(h) was removed and re-designated as 8 CFR §§ 236.3(h) and 1236.3(h). See 62 Fed. Reg. 10312 (Mar. 6, 1997).

understanding his rights and responsibilities in preparing for and appearing at final immigration

proceedings. See Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1157 (9th Cir. 2004).

It is abundantly clear that the Notice of Rights provision contained in the regulation was

implemented in order to benefit children under 18 apprehended at the border in order to protect

children’s due process rights after their apprehension and detention by the Department of

Homeland Security.

3. The Department failed to adhere to its regulatory requirements under 8 CFR §§ 236.3(h) and 1236.3(h).

Respondent’s attached sworn declaration clearly articulates the procedures that the DHS

applied to him at the time of his apprehension. See Tab B. Respondent was not permitted to

read any of the documents DHS provided to him. See Tab B. Respondent was told that he was

required to sign all of the documents and that if he failed to sign he would be detained for a

longer period of time and deported. See Tab B. Respondent was not explained any of his rights

by any DHS official. See Tab B.

The mere fact that the record contains a Form I-770 bearing the Respondent’s initials is

not dispositive of DHS compliance with the regulations. Respondent’s credible sworn affidavit

evidences a DHS practice designed to move Respondent through the process without any

meaningful advisal of his legal rights. In this case, DHS actions were grossly out of sync with

both the spirit and function of the regulations.

4. Prejudice to Respondent is presumed because the Due Process Clause of the U.S.

Constitution mandates compliance Sections 236.3(h) and 1236.3(h) of Title 8 for children under the age of 18.

Few principles are more deeply etched in the body of immigration law than that which

provides that the Fifth Amendment of the U.S. Constitution entitles aliens to due process of law

in deportation proceedings. Reno, 507 U.S. 292 (citing The Japanese Immigrant Case, 189 U.S.

86, 100-101 (1903)); Ferry v. Gonzales, 457 F.3d 1117, 1129 (10th Cir. 2006); Matter of G-, 20

I&N Dec. 764, 780 (BIA 1993). Unaccompanied alien children possess substantial

constitutional and statutory rights. These rights exist in spite of the minors’ illegal entry into the

country. See Mathews v. Diaz, 426 U.S. 67, 77 (1976). Further, “children have a very special

place in life which law should reflect.” May v. Anderson, 345 U.S. 528, 536 (1953) (Frankfurter,

J., concurring).

The Notice of Rights requirements, such as those established in 8 CFR § 236.3(h),

implicate the due process rights of juveniles, as minors generally cannot appreciate or navigate

the rules of or rights surrounding final proceedings that significantly impact their liberty

interests. See e.g., In re Gault, 387 U.S. 1, 33-34 (1967); see also United States v. Watts, 513

F.2d 5, 7-8 (10th Cir. 1975); Holloway v. Wainwright, 451 F.2d 149, 151 (5th Cir. 1971);

Kemplen v. Maryland, 428 F.2d 169, 175 (4th Cir. 1970).

Critically, in Perez-Funez, the very holding and court order that resulted in the INS’s

inclusion of the Notice of Rights provision at 8 CFR § 242.24(h), the court held that “the right to

a deportation hearing and the various rights associated therewith constitute a substantial liberty

interest on the part of [juvenile aliens]. Given the interests at stake and the tender ages of the

possessors of those interests, the Court must carefully scrutinize the risk of erroneous

deprivation.” See Perez-Funez, 619 F. Supp. at 660 (C.D. Cal. 1985). The Court went on to find

that permitting unaccompanied children under the age of 18 to agree to Voluntary Departure

without a detailed explanation of their legal rights was a violation of due process stating, “it

is the policies and procedures themselves that are constitutionally infirm.” See id. at 669

(emphasis supplied).

In light of the above, the Respondent respectfully asserts that the Department’s

compliance with the regulations delineated at 8 CFR §§ 236.3(h) and 1236.3(h) are

Constitutionally mandated in order to ensure that child alien respondents’ due process rights are

protected.

As such, Respondent asserts that prejudice is presumed from the Department’s failure

to adhere to 8 CFR § 236.3(h) and 1236.3(h) and removal proceedings must be invalidated and

terminated. See Matter of Garcia-Flores, 17 I&N Dec. 325; see also Waldron v. INS, 17 F.3d at

581.

IV. Conclusion

The Department’s failure to comply with the Regulations enacted to protect juvenile’s

due process rights requires this Honorable Court to terminate removal proceedings. See Matter of

Garcia-Flores, 17 I&N Dec. 325.

In light of the foregoing, Respondent respectfully requests this Honorable Court to

terminate removal proceedings.

Respectfully submitted, RESPONDENT By: _______________________________ Jennifer Casey, Esq. Kolko & Associates, P.C. 303 East 17th Avenue, Suite 585 Denver, CO 80203 Telephone: (303) 371-1822

Fax: (303) 373-1822 jc@kolkoassociates.com Dated: January 30, 2015

APPENDIX 4.A Redacted Interior Enforcement NTA with Personal Service

136

APPENDIX 4.B Redacted Border Enforcement NTA with ORR Service

139

APPENDIX 5.A Sample Motions to Terminate Based on NTA

142

NICKOLE MILLER (Bar No. 287435) PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA 90005 Telephone (213) 385-2977, ext. 192 Facsimile (213) 385-9089 Pro Bono Counsel for Respondent JOHN DOE

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT LOS ANGELES, CALIFORNIA

___________________________________ ) In the Matter of: ) )

) File No. A XXX-XXX-XXX JOHN DOE ) ) ) In Removal Proceedings ) ___________________________________ ) Immigration Judge A. Ashley Tabaddor Hearing: XX/XX/2015 at 9:00 AM

RESPONDENT’S MOTION TO TERMINATE PROCEEDINGS

1

Seventeen-year-old respondent, JOHN DOE, through pro bono counsel, moves this Court

to terminate proceedings. This Court lacks jurisdiction because the Department of Homeland

Security (DHS) failed to serve JOHN’s Notice to Appear (NTA) in compliance with Section

239(a)(1) of the Immigration and Nationality Act, 8 CFR § 1003.14, and Flores-Chavez v.

Ashcroft, 362 F.3d 1150, 1163 (9th Cir. 2004) prior to filing it with the Court. Alternatively,

even if jurisdiction vested, proceedings must be terminated because DHS violated JOHN’s

constitutionally-protected rights by failing to properly serve the NTA.

PROCEDURAL HISTORY

DHS apprehended JOHN near Hidalgo, Texas in August 2014. Declaration of JOHN

DOE ¶ 2 (attached at Tab A). While in DHS custody, JOHN was given documents to sign. Id. ¶

3. The documents were in English, which JOHN did not speak, read, or write. Id. The DHS

officer did not clearly explain what the documents were; he simply stated the documents were to

verify that JOHN was detained by immigration. Id. The officer told JOHN he had to sign the

papers, which JOHN did. Id. It appears that one of these documents he signed was his NTA. See

Form I-862 at 5 (attached at Tab B). The officer did not give JOHN copies of the documents he

signed. Tab A ¶ 3.

DHS later transferred JOHN to an Office of Refugee Resettlement (ORR) shelter. See

Tab A ¶ 4. No one served JOHN with the NTA while he was at the shelter. Id. In late August

2014, ORR released JOHN to his mother JANE DOE. Id.; Declaration of JANE DOE ¶ 2

(attached at Tab C). JOHN travelled by plane from Texas to California, accompanied by a man

he did not know. Tab A ¶ 5. Upon arrival in California, the man who accompanied JOHN

presented him with a packet of documents and instructed him to give the packet to his mother,

who met him at the airport. Id. JOHN’s NTA was not inside the packet. Tab C ¶ 7. The man

2

asked JOHN’s mother to sign a form, which she did, but she did not understand what she was

signing and was not given a copy of the document. Id. ¶ 6.

On October 2, 2014, DHS filed JOHN’s NTA with the Court. See Tab B at 4. The NTA’s

Certificate of Service reflects that on August 22, 2014, JOHN was personally served with the

NTA and was given oral notice in Spanish of the time and place of his hearing and of the

consequences of the failure to appear, as well as a list of free legal services. Id. at 5. Contrary to

the NTA’s Certificate of Service, DHS did not provide JOHN with a copy of the NTA or any

other papers or documents that he signed. Tab A ¶ 3. JOHN was not notified of his rights or the

charges against him. Id.

The NTA’s Certificate of Service does not reflect NTA service on JANE, his mother and

ORR sponsor. See Tab B at 5. At no point before DHS filed the NTA with the Court was JANE

served with JOHN’s NTA either personally or by mail. Tab C ¶¶ 4, 7; see Tab A ¶ 6.

On XX/XX/2014 and XX/XX/2014, JOHN appeared before this Court and he was given

continuances to secure counsel. On XX/XX/2015, he again appeared before this Court with

current pro bono counsel. At that hearing, DHS produced a copy of JOHN’s NTA. Prior to that

hearing, neither JOHN nor his mother had been given a copy of JOHN’s NTA. Tab A ¶¶ 3, 6;

Tab C ¶¶ 4, 6-7. JOHN, through counsel, raised the issue of improper NTA service. The Court

continued JOHN’s hearing to XX/XX/2015 to allow for the filing of this Motion.

3

ARGUMENT

A. Prompt NTA Service upon JOHN and His Mother Was Required Under the Governing Statute, Regulations, and Flores-Chavez JOHN is entitled to proper and timely service of his NTA. The INA provides:

In removal proceedings under section 240, 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) . . . .

INA § 239(a)(1) (emphasis added). Importantly, proper NTA service cannot be achieved by

simply “showing” a person his NTA or having him “sign for” his NTA. Instead, written notice

must be “given” to comply with INA § 239(a)(1). See 8 C.F.R. § 1003.32 (requiring that “such

service shall be in person or by first class mail to the most recent address contained in the Record

of Proceeding” and a “certification showing service” “shall accompany any filing with the

Immigration Judge”). Only following proper service can an NTA be filed that vests jurisdiction

in the Court. 8 C.F.R. § 1003.14(a).

But because JOHN resides within the Ninth Circuit, even more is required. Just as JOHN

was entitled to proper NTA service on himself, so too was he entitled to proper NTA service on

his ORR sponsor—in this case, his mother. In Flores-Chavez, the Ninth Circuit held that due

process and 8 C.F.R. § 242.24 (now 236.3) require that service be made “both to the ‘juvenile’ . .

. and to the person to whom the regulation authorizes release.” 362 F.3d at 1153. And this

service cannot be effectuated at any time DHS chooses. Instead, it must happen when the child is

released from federal custody:

Thus, when the INS releases a minor alien to an adult’s custody pursuant to 8 C.F.R. § 242.24, thereby making that adult responsible for the minor’s future appearance at immigration proceedings, the agency must serve notice of the minor’s rights and responsibilities upon that adult if the minor is under eighteen.

4

Id. at 1163 (emphasis added). No discretion is allowed; the duty is mandatory.

That the BIA has refused to apply Flores-Chavez outside of the Ninth Circuit does not

change these requirements. See Matter of Cubor-Cruz, 25 I&N Dec. 470, 472 (BIA 2011). First,

Cubor-Cruz turns upon 8 C.F.R. § 103.5a(c)(2)(ii)—a regulation with an explicit “age 14” cut-

off—not 8 C.F.R. § 242.24 at issue in Flores-Chavez. See Cubor-Cruz, 25 I&N Dec. at 472.

Second, post Cubor-Cruz the BIA continues to apply Flores-Chavez in the Ninth Circuit, as

rightly it should. See Justo Rojop-Hernandez, A 205 147 894 (BIA Apr. 23, 2014) (attached at

Tab D). Cubor-Cruz has no bearing on JOHN’s case.

B. Jurisdiction Has Not Vested with the Court and Thus Termination Is Required

The Court must terminate these removal proceedings because DHS failed to comply with

INA § 239(a)(1) and Flores-Chavez prior to filing the NTA. This error, which is not mendable in

the course of these proceedings, means that jurisdiction never vested with the Court. The Court

has no choice but to terminate these proceedings.

1. Jurisdiction Vests with the Court Only Upon the Filing of an NTA that Has Been Properly Served

Proper NTA service is a prerequisite to this Court’s jurisdiction. The filing of an NTA

which “include[s] a certificate showing service on the opposing party” triggers jurisdiction. See 8

C.F.R. § 1003.14(a). Both the Ninth Circuit and the BIA have recognized the service

requirement as jurisdictional under 8 C.F.R. § 1003.14. See Kohli v. Gonzales, 473 F.3d 1061,

1065 (9th Cir. 2007) (“[J]urisdiction vests in the Immigration Court ‘when a charging document

is filed’ with the Immigration Court. Section 1003.14 requires a certificate showing service, but

does not suggest that there are any other jurisdictional requirements.”) (citations omitted);

Matter of G-Y-R-, 23 I&N Dec. 181, 184 (BIA 2001) (“The alien must be properly served with

the Notice to Appear before . . . the Immigration Judge is authorized to proceed . . . .”)

5

(emphasis added).1 So has the Office of the Chief Immigration Judge. See Immigration Court

Practice Manual, Chapter 4.2(a) (June 10, 2013) (“Removal proceedings begin when the

Department of Homeland Security files a Notice to Appear (Form I-862) with the Immigration

Court after it is served on the alien.” (emphasis added)). Without service, jurisdiction does not

vest.

2. In JOHN’s Case, Jurisdiction Did Not Vest Because DHS Did Not Serve Him with the NTA Before It Filed the NTA with the Court

JOHN’s NTA does show personal service upon him. See Tab B at 5. This Certificate of

Service, however, is meaningless. JOHN has presented evidence that in fact DHS did not serve

him with an NTA prior to filing it with the Court on October 2, 2014. See Tab A ¶¶ 3, 5-6; Tab C

¶ 7. The NTA was not personally served on JOHN. Id. The NTA was not mailed to JOHN. Id. ¶

6. Despite DHS’s representation on the face of the NTA that it personally served JOHN with the

NTA on August 22, 2014, DHS never served JOHN.

Any subsequent service of JOHN’s NTA upon him cannot cure this jurisdictional flaw. If

that were intended, the regulations could have made this explicit. But they do not. This is in stark

contrast to 8 C.F.R. § 1003.30, which provides for the curing of problems related to an NTA’s

charges or factual allegations in the course of the removal proceedings themselves. See 8 C.F.R.

§ 1003.30 (allowing DHS to lodge “additional or substituted charges of deportability and/or

factual allegations” in the proceedings). Using accepted rules of interpretation, their silence

dictates the conclusion that improper initial NTA service is non-curable. See Elkins v. Moreno,

435 U.S. 647, 666 (1978) (absence of reference to an immigrant’s intent to remain a citizen of a

1 Cf. Mason v. Genisco Technology Corp., 960 F.2d 849, 854 (9th Cir. 1992); Direct Mail Specialists, Inc. v. Eclat

Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988) (“A federal court does not have jurisdiction over a defendant unless the defendant has been served properly . . . .”); Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (“Neither actual notice nor simply naming the person in the caption of the complaint will subject defendants to personal jurisdiction if service was not made in substantial compliance with Rule 4 [of the Federal Rules of Civil Procedure].”) (citations omitted).

6

foreign country “is deliberate” when contrasted with other provisions of “comprehensive and

complete” immigration code).

3. In JOHN’s Case, Jurisdiction Did Not Vest Because the NTA Did Not Reflect Legally-Sufficient Service on His Mother

Even if the Court concludes that DHS’s Certificate of Service is enough to establish

service on JOHN himself, the Court still lacks jurisdiction over his case. It is undisputed that the

Certificate of Service fails to show timely service upon his mother as required by Flores-Chavez.

See Tab B at 5. This is unsurprising, as this service was not perfected. See Tab C ¶¶ 4, 6-7. As a

result, the Certificate of Service cannot be considered to have showed legally-sufficient “service

on the opposing party” as required by 8 C.F.R. § 1003.14. Because of this defect, jurisdiction did

not vest with the Court upon the NTA’s filing. Terminating removal proceedings is the only

remedy, as the Court lacks jurisdiction to take any other action. See Matter of Mejia-Andino, 23

I&N Dec. 533, 537 (BIA 2002) (concluding Immigration Judge properly terminated child’s

removal proceedings when NTA service was deficient).

That the Ninth Circuit in Flores-Chavez did not terminate removal proceedings for lack

of jurisdiction is of no consequence. The Ninth Circuit’s review is limited to the arguments

presented to the BIA. See Segura v. Holder, 605 F.3d 1063, 1065-66 (9th Cir. 2010) (no

jurisdiction over legal claims not presented in administrative proceedings below). Lack of EOIR

jurisdiction was not argued in the Flores-Chavez case, as far as the opinion shows. See 362 F.3d

at 1153 (the BIA “rejected Flores’ claim that he did not receive proper notice”). Thus the Ninth

Circuit’s remand provides absolutely no support for the idea that proper service is non-

jurisdictional. By contrast, the Ninth Circuit opened the door for Flores-Chavez to make all

arguments available to him in his reopened proceedings, including jurisdictional ones. See

Matter of M-S-, 22 I&N Dec. 349, 353 (BIA 1998) (“to ‘rescind’ an in absentia deportation order

7

is to annul from the beginning all of the determinations reached in the in absentia hearing” and

“[o]nce an in absentia order is rescinded, the alien is then given a new opportunity to litigate the

issues previously resolved against her at the in absentia hearing.”).

C. Even if the Court Determines It Has Jurisdiction, It Must Nonetheless Terminate JOHN’s Removal Proceedings

The Court must terminate these removal proceedings because DHS failed to comply with

8 C.F.R. § 236.3, as interpreted by Flores-Chavez.2 This regulation serves a “purpose of benefit”

to children like JOHN, and prejudice is presumed because “compliance with the regulation is

mandated by the Constitution.” Matter of Garcia-Flores, 17 I&N Dec. 325, 329 (BIA 1980).

Termination is required.

1. The BIA and Ninth Circuit Require DHS Compliance with Its Regulations at Peril of Termination

As a general rule, to obtain termination of proceedings based on a regulatory violation a

respondent must first show that the regulation serves a “purpose of benefit” to him. Id.; see also

United States v. Calderon-Medina, 591 F.2d 529, 531 (9th Cir. 1979). Then, he must show that

the violation “prejudiced interests of the [respondent] which were protected by the violation.”

Calderon-Medina, 591 F.2d at 531. Prejudice is presumed, however, when “compliance with

the regulation is mandated by the Constitution.” Garcia-Flores, 17 I&N Dec. at 329. The Ninth

Circuit has recently underscored that “some regulatory violations are so serious as to be

reversible error without a showing of prejudice.” Montes-Lopez v. Holder, 694 F.3d 1085, 1093

(9th Cir. 2012) (holding that prejudice is not required for denial of right to counsel based, in part,

on violation of 8 C.F.R. § 1240.10(a)(1)-(2)) (internal citation and quotation omitted).

2 The regulation at issue in Flores-Chavez was 8 C.F.R. § 242.24, which the Ninth Circuit noted was recodified at 8 C.F.R. § 236.3 with “its substantive provisions [] largely unchanged.” See Flores-Chavez, 362 F.3d at 1153 n.1. 8 C.F.R. § 236.3 is the regulation operative in JOHN’s case.

8

2. 8 C.F.R. § 236.3, as Interpreted by Flores-Chavez, Serves a “Purpose of Benefit” to JOHN

It is beyond dispute that 8 C.F.R. § 236.3, as interpreted by Flores-Chavez, serves to

benefit JOHN and other children like him: It ensures effective notice of their proceedings, and

their “right to be heard.” See Flores-Chavez, 362 F.3d at 1157 (“As the Supreme Court noted in

Reno v. Flores, . . . the explicit purpose of section [236.3] is to ‘protect the welfare of the

juvenile.’”). Children enjoy a due process right in removal proceedings to notice of, among other

things, the nature of the proceedings and the charges lodged against them. See Dobrata v. INS,

311 F.3d 1206, 1210 (9th Cir. 2002) (“Aliens facing deportation are entitled to due process under

the Fifth Amendment to the United States Constitution, encompassing a full and fair hearing and

notice of that hearing.”). 8 C.F.R. § 236.3’s requirement, as interpreted by the Ninth Circuit, that

DHS provide notice to ORR sponsors for all children under eighteen implements this

constitutional guarantee. Cf. United States v. Caceres, 440 U.S. 741, 749 (1979) (“A court’s duty

to enforce an agency regulation is most evident when compliance with the regulation is

mandated by the Constitution or federal law.”). It is children, not DHS or the Court, who are the

beneficiaries of this heightened notice requirement. Unsurprisingly, two key cases that rejected

challenges to NTA service did not find that child-specific notice requirements failed to serve a

“purpose of benefit” to children. See Nolasco v. Holder, 637 F.3d 159 (2d Cir. 2011); Cubor-

Cruz, 25 I&N Dec. 470.

3. Compliance with 8 C.F.R. § 236.3, as Interpreted by Flores-Chavez, Is Clearly “Mandated by the Constitution” and Thus Prejudice Is Presumed

The Court need look no further than the face of Flores-Chavez to see that compliance

with the notice requirement the Ninth Circuit read into 8 C.F.R. § 236.3 is “mandated by the

Constitution.” The court specifically interpreted 8 C.F.R. § 236.3 to require notice to ORR

9

sponsors because not to do so “contravenes the purpose behind the underlying regulatory

framework and raises a possible due process violation.” Flores-Chavez, 362 F.3d at 1162. In

performing the procedural due process analysis under Mathews v. Eldridge, 424 U.S. 319 (1976),

the Ninth Circuit concluded that “serving notice on the adult who takes custody of a juvenile

alien is a vitally important step in ensuring that juveniles are given a meaningful chance to be

heard.” Id. at 1161. Without it, “serious constitutional due process questions” would be raised—

questions that the Ninth Circuit indicated would create “grave doubts” about the propriety of

notice. Id. at 1162 (quotation and citation omitted). That prejudice must be presumed is further

underscored by the fact that Flores-Chavez’s rule applies even when the children are themselves

served and receive actual notice of the proceedings. See United States v. Nahun-Torres, CR 12-

306 SI, 2013 WL 140047, *2, *8-*10 (N.D. Cal. Jan. 10, 2013) (due process rights of a sixteen-

year-old child were violated where his father was not served with a copy of the NTA, even

though the child was personally served) (attached at Tab E); United States v. Nunez-Velasco,

CR-11-2055-RHW, 2011 WL 3882469, *3 (E.D. Wash. Sept. 2, 2011) (service was improper

where “no notice was sent to [respondent’s] father”) (attached at Tab F). Prejudice to JOHN, in

light of DHS’s clear violation of 8 C.F.R. § 236.3 as interpreted in Flores-Chavez, is presumed.3

Were this case arising in the Second Circuit, or in a jurisdiction without governing circuit

court case law, the result might well be different. See Nolasco, 637 F.3d at 163 (deficient service

of a child’s NTA does not implicate a fundamental right where the child appeared in court);

3 As such, the notion that Flores-Chavez’s rule somehow applies only in the in absentia context is incorrect. The Ninth Circuit announced a rule to protect children’s due process rights, not merely a remedy when an in absentia order has issued. See Flores-Chavez, 362 F.3d at 1163 (announcing the holding with no reference to the in absentia order). Indeed, Flores-Chavez is properly read to prevent in absentia orders against children who fail to receive notice calculated to ensure their presence in court by requiring Immigration Judges to hold DHS to a higher notice standard. See Nunez-Velasco, 2011 WL 3882469, *3 (“[T]he Government must prove ‘by clear, unequivocal, and convincing evidence that written notice was so provided’ to the alien. 8 U.S.C. § 1229a(b)(5)(A). After Flores-

Chavez, this notice would include that to his guardian.”). That a child with an in absentia order may more readily show prejudice when child-specific notice provisions are violated in no way indicates that actual prejudice is required to warrant termination.

10

Cubor-Cruz, 25 I&N Dec. at 473 (“We therefore conclude that personal service of the Notice to

Appear on a minor who is 14 years of age or older at the time of service is effective, even though

notice is not served on the adult with responsibility for the minor.”). But that is not the situation.

JOHN’s proceedings are firmly governed by the additional, child-sensitive notice provisions

articulated in Flores-Chavez. Until that case is overruled by the Ninth Circuit, or by the U.S.

Supreme Court, this Court is bound to follow it.

In sum, because (1) DHS violated 8 C.F.R. § 236.3, as interpreted by the Ninth Circuit,

(2) the regulation serves to benefit JOHN, and (3) prejudice is presumed, the Court must

terminate JOHN’s proceedings.

* * *

This Court lacks jurisdiction over JOHN’s case. Even if the Court finds that it has

jurisdiction, it must nonetheless terminate his removal proceedings because DHS violated

JOHN’s constitutionally-protected rights when it failed to properly serve his NTA. JOHN

requests that the Court grant his Motion to Terminate Proceedings.

Dated: February 20, 2015 Respectfully submitted,

Nickole Miller, Esq., Pro Bono Attorney for the Respondent

Public Counsel 610 S. Ardmore Avenue Los Angeles, CA 90005 Telephone: (213) 385-2977 x.192 Fax: (213) 385-9089 nmiller@publiccounsel.org

11

TABLE OF CONTENTS TAB PAGES A Declaration of JOHN DOE 1-3 B JOHN DOE’s Form I-862 4-5 C Declaration of JANE DOE 6-8 D Justo Rojop-Hernandez, A 205 147 894 (BIA Apr. 23, 2014) 9-10 E United States v. Nahun-Torres, CR 12-306 SI, 2013 WL 140047 (N.D. Cal. Jan. 10, 2013) 11-20 F United States v. Nunez-Velasco, CR-11-2055-RHW, 2011 WL

3882469 (E.D. Wash. Sept. 2, 2011) 21-25

APPENDIX 5.B Sample Motions to Terminate Based on NTA

155

Jennifer Casey, Esq. KOLKO & ASSOCIATES, P.C. 303 East 17th Avenue, Suite 585 Denver, CO 80203 Phone: (303) 371-1822 Fax: (303) 373-1822 jc@kolkoassociates.com Attorney for Respondent

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT DENVER, COLORADO

In the Matter of: ) ) File No. A ) ) Respondent ) ______________________________) Immigration Judge Hearing Date:

RESPONDENT’S MOTION TO TERMINATE REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE OF IMMIGRATION REVIEW

IMMIGRATION COURT DENVER, COLORADO

In the Matter of: ) ) ) File No. A ) ) Respondent ) _________________________________________ )

TABLE OF CONTENTS

Tab Page

Motion to Terminate Removal Proceedings 1-10

A) Notice to Appear (dated September 11, 2013) 11-12

B) Form I-213 (dated September 11, 2013) 13-15

C) Sworn Statement of Respondent[with certified English translation] 16-22

D) Sworn Statement of Respondent’s father 23-24

E) Proof of Service 25

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT DENVER, COLORADO

In the Matter of: ) A

) ) ) Motion to Terminate Removal Proceedings

) ) Respondent ) Honorable Judge ____________________________________)

RESPONDENT’S MOTION TO TERMINATE REMOVAL PROCEEDINGS

I. Introduction

Respondent, by and through KOLKO & ASSOCIATES, P.C. and JENNIFER CASEY,

ESQ., hereby respectfully moves this Honorable Court grant Respondent’s Motion to

Terminate Removal Proceedings.

Respondent respectfully asserts that under Section 1003.14 of Title 8 of the Code of

Federal Regulations (CFR), this Honorable Court does not have jurisdiction over the instant

proceedings due to the Department of Homeland Security (DHS or Department) failure to serve

Respondent with the Notice to Appear (NTA) in compliance with Section 239(a)(1) of the

Immigration and Nationality Act (INA or Act). In light of the fact that jurisdiction has not vested

with this Honorable Court, removal proceedings must be terminated. See 8 CFR §§ 1003.14.

Alternatively, Respondent asserts that the Department’s failure to comply with the

service requirements under 8 CFR § 103.8(c)(2)(ii) also mandates termination of proceedings.

II. Statement of Case

Respondent, born on April 20, 1999, is currently a fifteen (15) year old child. In early

September of 2013,1 Respondent was apprehended by DHS officials near Hidalgo, Texas.

Respondent was fourteen (14) years of age on the date of his apprehension by DHS. At the time

of his apprehension, Respondent spoke only his native language of Spanish. In the instant case,

the NTA (Form I-862) and Record of Deportable/Inadmissible Alien (Form I-213) are each dated

September 11, 2013. See Exhibits A and B, respectively.

Respondent asserts that he was apprehended by DHS near the U.S./Mexico Border.

Respondent asserts that immediately after his apprehension he was taken to a “hielera” – a very

cold holding cell. At this time, he was forced to remove most of his clothes, he was crying and

afraid. See Exhibit C. A DHS officer asked him if he had any relatives in the United States.

Respondent confirmed that he did and provided the name and telephone contact information for

his father. See Exhibit C. The DHS officer then telephoned Mr., confirmed that Mr. was in fact

Respondent’s father and informed Mr. that Respondent had been apprehended by the DHS in

Texas and that Respondent would be transferred to another detention center in Texas.2 See

Exhibit D.

Respondent was then transferred to a second “hielera.” At this location, Respondent was

questioned by DHS officials in a mixture of Spanish and English about his reasons for traveling

to the United States. See Exhibit C. When Respondent stated that he traveled to the United

1 The Respondent is uncertain of the actual date of his apprehension by DHS authorities, the date is likely on or around September 10, 2013 or September 11, 2013. 2 Form I-213 submitted by the Department in order to establish the alienage of Respondent confirms that the Department had Respondent’s father, Mr.’s telephone contact information and location on September 11, 2013. See Exhibit B.

States because he was fleeing gangs that had threatened him and his grandmother, he was

laughed at by DHS officials and told that he needed a better reason than that and was repeatedly

questioned about the “real reason” he came to the United States. See Exhibit C.

The DHS officials questioning Respondent told him that he was required to sign papers

that they put in front of him. See Exhibit C. Respondent explicitly asked whether he was

required to sign the papers and the DHS officials informed him that he was required to sign the

papers and that if he did not sign the papers, he would be kept in the “hielera” for a long time and

he would be deported. See Exhibit C. The DHS officials did not read any of the papers to

Respondent. See Exhibit C. The DHS officials did not give the papers to Respondent for him to

read prior to signing. See Exhibit C. Respondent was not permitted to sit down or review any of

the papers or documents before he signed. See Exhibit C. Respondent was forced to remain

standing and the DHS officials pointed to every place on a variety of papers where he was

supposed to sign. See Exhibit C. Respondent remembers signing his initials where the DHS

officer pointed.

The Certificate of Service on the NTA certifies that Respondent was personally served

with the NTA and was given oral notice in Spanish of the time and place of his hearing and of

the consequences of the failure to appear. See Exhibit A. The NTA does not indicate that service

on a conservator or on Respondent’s near relative was executed. See id.

After Respondent signed the documents that DHS indicated were required, Respondent

was provided with some juice and then transferred to a third “hielera.”

The Department did not provide Respondent with a copy of any of the NTA or any

other papers or documents he signed at this time. See Exhibit C.

On approximately September 13, 2013, Respondent was transferred to the custody of

U.S. Department of Health & Human Services’ (HHS) Office of Refugee Resettlement (ORR) in

Harlingen, Texas.

On September 16, 2013, DHS filed the NTA was filed with the Harlingen, Texas

Immigration Court. See Exhibit A.

On September 25, 2013, Respondent was released to the custody of his father. Upon his

release from ORR custody, ORR provided Respondent with a packet that included a copy of the

NTA. Prior to September 25, 2013, Respondent had neither seen nor had in his possession this

(or any other) document generated by the Department. See Exhibit C.

III. Legal Discussion

Respondent respectfully asserts that this Honorable Court’s jurisdiction over 240 removal

proceedings has not vested in the instant case and therefore removal proceedings must be

terminated. See INA § 239(a)(1); 8 CFR § 1003.14(a).

A. Jurisdiction has not vested with this Honorable Court because the Department failed to serve Respondent with the NTA prior to filing the NTA with the U.S. Immigration Court.

Under the plain language of the Immigration and Nationality Act, (INA or Act), the

Department bears the burden of demonstrating by “clear, unequivocal, and convincing evidence”

that it has provided written notice as required by Section 239(a)(1) of the Act. See INA §

240(b)(5)(A).

Section 239(a)(1) of the INA provides, in relevant part:

“[i]n removal proceedings under Section 240, 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)….” INA § 239(a)(1) (emphasis supplied).

Section 1003.14(a) of Title 8 of the Code of Federal Regulations provides:

“jurisdiction vests and removal proceedings commence when a charging document is filed with the Immigration Court by the Service. The charging document must include a certificate of service on the opposing party pursuant to 8 CFR § 1003.32 which indicates the Immigration Court in which the charging document is filed.” 8 CFR § 1003.14(a) (emphasis supplied).

Section 1003.13 of Title 8 of the CFR defines “service” as physically presenting or mailing the

document to the appropriate party or parties. See 8 CFR § 1003.13 (2014).

8 CFR § 1003.32(a) provides:

“except in in absentia hearings, a copy of all documents (including proposed exhibits or applications) filed with or presented to the Immigration Judge shall be simultaneously served by the presenting party on the opposing party or parties. Such service shall be in person or by first class mail to the most recent address contained in the Record of Proceeding. A certification showing service on the opposing party or parties on a date certain shall accompany any filing with the Immigration Judge unless service is made on the record during the hearing. Any documents or applications not containing such certification will not be considered by the Immigration Judge unless service is made on the record during a hearing.” 8 CFR § 1003.32(a) (emphasis supplied).

Furthermore, under the BIA has held that where the Immigration Judge is not satisfied that

Service of the charging document was proper, termination of proceedings is the appropriate

remedy. See Matter of Lopez-Barrios, 20 I&N Dec. 203, 204 (BIA 1990); see also Matter of

Mejia-Andino, 23 I&N Dec. 533 (BIA 2002) (holding that where the legacy INS failed to

establish by clear, unequivocal, and convincing evidence that written notice was properly

provided to the Respondent, termination of proceedings was appropriate.).

In the instant case, the Department failed to serve Respondent with the NTA at all. The

NTA was not personally served on Respondent. The NTA was not mailed to Respondent. The

NTA was not served on Respondent’s parents. Despite the Department’s clear representation on

the face of the NTA’s Certificate of Service that it personally served Respondent with the NTA

on September 11, 2013, DHS never served Respondent with the NTA.

In light of the Department’s failure to serve Respondent with the NTA, this Honorable

Court does not have jurisdiction over Respondent. See 8 CFR § 1003.14.

As such, the instant proceedings must be terminated.

B. Jurisdiction has not vested with this Honorable Court because the Department failed to serve Respondent’s biological father with a copy of the NTA as required by 8 CFR § 103.8(c)(2)(ii).

In the unlikely event that this Honorable Court determines that the Department’s

complete and total omission of service of the NTA on the Respondent somehow satisfies both

INA § 239(a) and 8 CFR § 1003.14(a), Respondent alternatively asserts that the Department’s

failure to comply with 8 CFR § 103.8(c)(2)(ii) also strips this Honorable Court of jurisdiction

over the instant removal proceedings. Section 103.8(c)(2)(ii) of Title 8 of the CFR provides the

mentally incompetent and minors with additional protections and safeguards regarding service of

the NTA.

Section 103.8(c)(2)(ii) dictates when personal service by DHS is required for minors and provides:

“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.” 8 CFR § 103.8(c)(2)(ii) (emphasis supplied).

By its plain language, section 103.8(c)(2)(ii) applies to all “minors,” and carves out an additional

requirement for minors under 14 years of age. While the Regulations do not define the term

“minor,” the term “juvenile” is defined at 8 CFR § 236.3(a) as an individual under the age of

eighteen (18). Further, given that the Regulations use the terms “juvenile” and “minor”

interchangeably, both “juvenile” and “minor” should be understood to mean an individual under

18 years of age.3

Respondent acknowledges the BIA decision in Matter of Cubor-Cruz, which held that

service on a near relative is not required under the regulations for minors between the ages of 14

and 18. See Matter of Cubor-Cruz, 25 I&N Dec. 470 (BIA 2011). However, Respondent

respectfully asserts that the Board’s decision in that case is not supported by the plain language

of the regulations.

Respondent highlights the Ninth Circuit Court of Appeals has held that Section

103.8(c)(2)(ii)’s4 requirement that the NTA be served on the parent or near relative is applicable

to children between the ages of 14 and 18 years of age and is not limited to children under the

age of 14. Flores-Chavez v. Ashcroft, 362 F.3d 1150 at 1163 (9th Cir. 2004). In rendering its

decision, the Flores-Chavez Court noted that parental notification requirements, such as those

established in 8 CFR § 103.8(c)(2)(ii), implicate the due process rights of juveniles, as minors

generally cannot appreciate or navigate the rules of or rights surrounding final proceedings that

significantly impact their liberty interests. See Flores-Chavez, 362 F.3d at 1160 (citing In re

Gault, 387 U.S. 1, 33-34, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967); United States v. Watts, 513

3 For example, 8 CFR § 215.5(b)(3)(i) provides, “juveniles may be released to a relative … not in Service detention who is willing to sponsor the minor and the minor may be released to that relative not withstanding that the juvenile has a relative who is in detention. See 8 CFR § 212.5(b)(3)(i) (2014). 4 At that time the relevant regulation was published as 8 CFR § 103.5a(c)(2)(ii). In 2011, 103.5a(c)(2)(ii) was removed and re-designated as 8 CFR § 103.8(c)(2)(ii). See 76 Fed Reg. 53763 (Aug. 29, 2011).

F.2d 5, 7-8 (10th Cir. 1975); Holloway v. Wainwright, 451 F.2d 149, 151 (5th Cir.

1971); Kemplen v. Maryland, 428 F.2d 169, 175 (4th Cir. 1970)).

The Board of Immigration Appeals (Board or BIA) has also made clear that the purpose

of Section 103.8(c)(2)(ii) is to serve “the person or persons who are most likely to be

responsible for ensuring that an alien appears before the immigration court at the scheduled

time.” Matter of Amaya, 21 I&N Dec. 583 (BIA 1996); see also Matter of Gomez-Gomez, 23

I&N Dec. 522 (BIA 2002). Matter of Mejia-Andino, 23 I&N Dec. 533, 536 (BIA 2002), the

Board determined that because “parents have ultimate responsibility in cases involving minor

respondents,” service upon the parents is required whenever possible “if it appears that a minor

child will be residing with his parents in this country,” regardless of whether the minor resides

with the adult at the time of service. Matter of Mejia-Andino, 23 I&N Dec. at 536 (citing

Gonzalez v. Reno, 212 F.3d 1338, 1349-50 (11th Cir. 2000).

Section 103.8(c)(2)(ii) provides that for minors (i.e., individuals under the age of 18),

“wherever possible, service shall also be made on the near relative, guardian committee or

friend.” 8 CFR § 103.8(c)(2)(ii) (emphasis supplied).

Here, it was certainly possible for DHS to serve Respondent’s father with the NTA.

Indeed, both Respondent and Mr. have provided sworn affidavits confirming the fact that a DHS

official contacted Mr. by telephone on the date of Respondent’s apprehension by DHS

authorities. Exhibits C-D. DHS’s own Form I-213 further confirms the fact that the

Department had the correct and accurate contact information for Mr. on the date the NTA was

issued. See Exhibit B. With that information in its possession, DHS could have easily phoned

Mr. to confirm his address in the United States in order to serve the NTA on Respondent’s near

relative as required under 8 CFR § 103.8(c)(2)(ii). Given that it was possible for DHS to serve

Mr. with the NTA, by the plain language of the regulation, the Department was obligated to do

so. See id. (“wherever possible, service shall also be made on the near relative, …”) (emphasis

supplied).

The Department’s failure to comply with 8 CFR § 103.8(c)(2)(ii) and serve Respondent’s

father with the NTA prior to filing the NTA with the U.S. Immigration Court renders the service

of the NTA defective as a whole. See Matter of Mejia-Andino, 23 I&N Dec. at 537.

As such, removal proceedings have not vested with this Honorable Court and

proceedings should be terminated.

IV. Conclusion

In light of the fact that the Department of Homeland Security failed to properly serve

Respondent with the Notice to Appear as required by INA § 239(a)(1). Under 8 CFR §

1003.14(a), jurisdiction with this Court this Honorable Court vests only with the filing of a NTA

that meets the statutory requirements regarding service. Due to the Department’s failure to

properly serve the NTA on Respondent, jurisdiction has not vested with this Court and

termination of proceedings is required.

Additionally, DHS’ failure to adhere to 8 CFR § 103.8(c)(2)(ii) which requires service of

the NTA on a minor Respondent’s near relative where possible also renders the Department’s

service of the NTA invalid, thus requiring termination of proceedings.

In light of the foregoing, Respondent respectfully requests this Honorable Court to

terminate removal proceedings.

Respectfully submitted, By: _______________________________ Jennifer Casey, Esq. Kolko & Associates, P.C. 303 East 17th Avenue, Suite 585 Denver, CO 80203 Telephone: (303) 371-1822 Fax: (303) 373-1822 jc@kolkoassociates.com Dated: January 30, 2015

APPENDIX 6.A Sample Discovery Motion for Issuance of Subpoenas and Production of Documents

169

1

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT NEWARK, NJ

____________________________________ ) In the Matter of: ) )

) File No: A 111-111-111 ) ) IJ Osuna ) In removal proceedings ) ____________________________________

RESPONDENT’S MOTION TO COMPEL DOCUMENT PRODUCTION OR IN THE ALTERNATIVE FOR A SUBPOENA

Respondent, , by and through his attorney, respectfully moves that the Court

compel document and evidentiary production from ICE counsel. Respondent also moves that the

Court issue subpoenas or other appropriate relief to compel the government to produce

documents and make witnesses available for questioning. [Consider asking for an order in

limine that information that we make (1) in furtherance of obtaining document production, FOIA

production, or other discovery production, or (2) in furtherance of a motion to terminate, not be

made admissible to establish allegations in the Notice to Appear, including alleged alienage.]

I. THE COURT MUST COMPEL DOCUMENT AND EVIDENDIARY PRODUCTION FROM ICE COUNSEL – ADDITIONALLY, THE COURT MUST ISSUE SUBPOENAS AND OTHER RELIEF TO COMPEL THE GOVERNMENT TO PRODUCE DOCUMENTS

Documents, evidence, and witnesses are critical for us to prepare our case. Access to

evidence is critical to demonstrate that on or around October 19, 2009 (when the government

arrested Mr. ), government officials violated their policies and procedures. Proving that

2

they violated their policies and procedures would require the Court to suppress evidence and

terminate proceedings. The Court must compel the government to produce:

1. All exculpatory evidence regarding the arrest, interrogation and detention of Mr.

2. All documents, notes, forms, computer files, logs, videos, and recordings related to the arrest, interrogation and detention of Mr.

3. All documents related to the training, whether formal or informal, or on the job training for CBP agents regarding the rights of detained, unaccompanied minors under the immigration regulations. This is including, but not limited to, those involved in the

apprehension of Mr.

4. All policies and regulations, including disciplinary rules for CBP agents regarding the rights of detained, unaccompanied minors under the immigration regulations. This is including, but not limited to, those involved in the apprehension of Mr.

5. A complete copy of any Department of Homeland Security or Department of Justice manual regarding the Law of Arrest, Search, and Seizure for Immigration Officers in effect as of .

6. All documents regarding the work performance of each individual involved in the apprehension and detention Mr. on or around , including disciplinary records or investigations.

7. All documents relating to the job duties and responsibilities of , , and any other person involved in the apprehension and detention of Mr.

on or around .

8. All documents related to any complaints (formal and informal) regarding , , or any of the people involved in the apprehension and detention of Mr.

on or around in the Tucson Sector Coordination Center.

9. Litigation records, FTCA, or Bivens claims against , , or any of the people involved in the apprehension and detention of Mr. on or around

in the Tucson Sector Coordination Center.

10. A photograph of , , and all government employees who had contact with Mr. on or around in the Tucson Sector Coordination Center related to his apprehension and detention. To the extent possible, the photograph should reflect their physical appearance around .

11. Organizational charts and other lists that reflect the staff structure and management structure of CBP apprehensions and detentions in and around Tucson Sector Coordination Center on or around .

3

12. All documents relating to the transfer of Mr. to the Office of Refugee Resettlement Southwest Key Phoenix Shelter.

The Court must compel the government to produce electronic information in a manner

that preserves the meta-data about the information. The Court must also compel the government

to produce information necessary to interpret entries in documents or computer files that they

produce. For example, if some of the documents include cryptic codes, the government must

produce an explanation or legend about what the code represents, including what other codes the

author chose not to use for that entry. In addition, the government must submit sufficient

information to support any claim of confidentiality or privilege for documents that they should

be producing.

The Court is required to order that the government produce documents. The Ninth

Circuit has acknowledged the duty of an IJ to order document production from ICE in Dent v.

Holder, 627 F.3d 365 (9th Cir. 2010). [If appropriate, explain that if Ninth Circuit decisions are

not binding on this court, the legal analysis is persuasive and the Court should rule in the same

way that the Ninth Circuit ruled.]

Moreover, Congress has declared by statute that respondents “shall have access” to

documents about entry to the United States along with “any other records and documents, not

considered by the Attorney General to be confidential, pertaining to the [respondent’s] admission

or presence in the United States.” 8 U.S.C. § 1229a(c)(2)(B); INA § 239(c)(2)(B). This

mandatory access law entitles us to obtain all records and documents not considered confidential

relating to Mr. presence in the United States. As the Ninth Circuit held, at the very

least this includes a court order compelling ICE to produce the A-file. In addition, the rationale

of the Ninth Circuit also would require the Court to issue an order compelling production of

other documents relating to Mr. presence in the United States.

4

Traditional methods of statutory analysis support the Ninth Circuit’s legal conclusion that

the statutes require an IJ to issue an order compelling ICE to produce documents. The Ninth

Circuit invoked the doctrine of constitutional avoidance, which requires courts to interpret

statutes in a manner that would avoid serious constitutional problems. The Ninth Circuit held

that interpreting the statute in any manner that did not require an order compelling document

production would raise serious constitutional problems. There would be serious due process

problems in requiring a respondent to proceed with a case without being provided access to

documents that could play a critical role in the case. In the Dent case, the Ninth Circuit

concluded that immigration judges must issue orders compelling document production and

cannot condition those orders on requiring a party to file a FOIA request. The court took judicial

notice of the time required to obtain FOIA production and concluded that it would be

unconstitutional to force respondents to file FOIA requests as the sole method to obtain

documents. That would deny access until it would be too late to use it. Not only would that be

unconstitutional, that interpretation of the statute would unreasonably impute to Congress and

the agency “a Kafkaesque sense of humor about aliens’ rights,” as the Ninth Circuit said in Dent

v. Holder.

A district court decision further bolsters the need for the Court to compel document

production rather than insist that a respondent obtain documents through FOIA requests. In

Hajro v. USCIS, No. 08-1350-PSG (N.D. Cal. Oct. 13, 2011), the district court concluded that

USCIS violated a 1992 settlement agreement in which USCIS is required to produce documents

through FOIA in a timely manner. In additiona, the district court ruled that USCIS also violated

the 20-day requirement to respond to FOIA requests.

5

As an independent reason why the Court must issue an order compelling ICE to produce

documents, due process requires the Court to issue such an order. The Supreme Court has

already addressed the requirement under due process to compel the government to produce all

exculpatory evidence. The Court here must issue such an order. The Supreme Court held that an

essential component of due process is the right to the production of exculpatory evidence. Brady

v. Maryland, 373 U.S. 83 (1963). In Brady, the Supreme Court focused on the requirements that

applied based on the Fifth and Fourteenth Amendments of the United States Constitution. Under

those due process requirements, criminal defendants must receive exculpatory evidence in the

possession of the government. The fact that Brady involved a criminal case, as opposed to an

immigration case, is a distinction without a difference. Respondents in removal proceedings, and

particular Mr. in this removal proceeding, face grave consequences if they are deprived

of due process.

As further proof that the analysis in Brady applies to Mr. removal proceeding, it

is well-established that due process and specifically the Fifth Amendment applies to removal

proceedings such as this case. See, e.g., Bridges v. Wixon, 326 U.S. 135, 154 (1945). See also

Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1949) (resident alien entitled to due process in

fundamentally fair procedures in any attempt to deport him); Barraza-Rivera v. INS, 913 F.2d

1443, 1447 (9th Cir. 1990) (same). In addition, INA § 240(b)(4) provides an alien in removal

proceedings the right to present evidence and witnesses on his behalf and to examine and cross-

examine the evidence against him.

For the reasons listed above, the Court must compel the government to produce

documents. The Court must also issue subpoenas for the material and compel the production of

6

witnesses and other information through depositions, interrogatories, and witness testimony in

court.

Ordering depositions, interrogatories, and other discovery methods are required to

provide Mr. an opportunity to examine and challenge the evidence that will be used

against him and an opportunity to prepare and present evidence about what happened. Under 8

CFR 1003.35(b)(3), the Court must issue a subpoena where we can explain what we expect the

materials to show, why the materials are essential to the case, and that there is no other way to

obtain the materials. First, we can explain what we expect the materials to show – the materials

will prove that the government violated its policies and procedures when officials detained Mr.

by not giving specific warnings to detained minors and placing him in painfully cold

rooms. We expect the materials to show that CBP had policies at the time that required officials

to provide an I-770 form to minors such as Mr. that CBP was aware and should have

been aware that Mr. was a minor, and that CBP did not provide an I-770 form to Mr.

We also expect the materials to show that CBP had policies at the time that required

officials to house Mr. in rooms that were not painfully cold, that policies required CBP

to allow Mr. a reasonable opportunity to adjust the temperature, and that CBP was aware

or should have been aware that it was violating its policies. Second, we can explain why these

materials are essential to the case – they will form the basis for terminating proceedings under

Matter of Garcia-Flores, 17 I&N Dec. 325 (BIA 1980). They will also form the basis for

suppressing evidence because of the coercive nature in which DHS obtained the materials and

the severity of DHS’s seizure of Mr. See Almeida-Amaral v. Gonzales, 461 F.3d 231

(2d Cir. 2006). Third, there is no other way to obtain the materials. Respondent through counsel

has contacted ICE counsel to request that ICE voluntarily produce the material, has filed four

7

FOIA requests seeking expedited production, and is filing a motion for the Court to compel

document production. To date, none of these efforts have provided us with access to the

materials. Realistically speaking, there is no other way to obtain the materials.

Another reason that the material is essential is because of the manner in which memory

functions. Memory is not merely the rote recall of events that took place in the past. Under the

misinformation effect, misleading information presented between the encoding of the event and

later attempts to recall it may influence the person’s memory. In addition, it is possible that the

potential impact of the misinformation effect is stronger on younger people than adults. Mr.

was particularly young when the government detained him. It is critical that Mr.

is presented with reliable information about what happened to avoid or minimize any potential

misinformation effect. It is essential that the government produce relevant materials and make

witnesses available for depositions so that Mr. memory will not be influenced by the

misinformation effect.

In addition, the Court is required to compel the production of witnesses to provide the

Respondent with the statutory right under INA § 240(b)(4) to present witnesses on the

Respondent’s behalf.

Dated: Newark, New Jersey [Add signature block, a certificate of service, and a proposed order]

8

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT

NEWARK, NJ

SUBPOENA

In the Matter of: Date: _______________________ A 111-111-111 To: U.S. Department of Homeland Security Immigration and Customs Enforcement 614 Frelinghuysen Ave., 3rd Floor

Newark, NJ 07114 You are hereby commanded to designate one or more officers, directors, or managing agents to appear on behalf of the agency before Immigration Judge Osuna at 970 Broad Street, Newark, NJ 07102 on _____________ at ______ AM/PM to give testimony in connection with the removal proceedings being conducted under the authority of the Immigration and Nationality Act, relating to . You are further commanded to make the designated individuals available for depositions conducted by Mr. through his legal representatives and to answer their interrogatories. You are further commanded to instruct the agents appearing on behalf of the agency to bring with them the items on the following list.

[INSERT here a list of items sought]

APPENDIX 6.B Sample FOIA Request

178

APPENDIX 6.C Sample Dent Request

182

APPENDIX 7 Compilation of Redacted Versions of Hold Rooms Memorandum

184

The U.S. Border Patrol Policy memo on Hold Rooms and Short Term Custody dated January 31, 2008 has several redacted portions that contain essential information. This directive established a national policy for the short-term custody of persons arrested or detained by Border Patrol Agents and detained in hold rooms at Border Patrol stations, checkpoints, processing facilities, and other facilities that are under the control of U.S. Customs and Border Protection (CBP).

As a response to a FOIA request in mid-2010, CBP released a different version of this policy directive. This version has several redacted portions as well, but also includes information missing from the original released memo. Interestingly, the later version is missing a lot of information that was not previously redacted in the original memo. For purposes of this memo, the original released Policy Directive is referred to as “Policy 1,” and the Policy Directive we got in 2010 thanks to a FOIA request is referred to as “Policy 2.” The text in blue is interesting information unveiled in the 2010 production.

Text in pink—Redacted from both Policy 1 and Policy 2 Text in blue—Redacted from Policy 2 only Text in yellow—Redacted from Policy 1 only

U.S. BORDER PATROL POLICY

SUBJECT: DETENTION STANDARDS Reference Number: … DATE: January 31, 2008

HOLD ROOMS AND SHORT TERM CUSTODY

1. PURPOSE. This directive establishes national policy for the short-term custody of persons arrested or detained by Border Patrol Agents and detained in hold rooms at Border Patrol stations, checkpoints, processing facilities, and other facilities that are under the control of U.S. Customs and Border Protection (CBP).

2. AUTHORITIES/REFERENCES. 2.1 Title 8, United States Code, Section 236 2.2 Title 8, Code of Federal Regulations, Section 236 2.3 Border Patrol Handbook 2.4 Officers Handbook (M-68) 2.5 The Law of Arrest, Search and Seizure for Immigration Officers (M-69) 2.6 Flores v. Reno, Stipulated Settlement Agreement, No. CV 85-4544-RJK (Px)

(C.D. Cal. Jan. 17, 1997). Also, “Flores.” 2.7 Homeland Security Act of 2002, Section 462 2.8 “Interim Guidance Regarding Unaccompanied Juveniles in Custody”

Memorandum to All Chief Patrol Agents from David V. Aguilar, Chief, U.S. Border Patrol (September 2, 2005).

2.9 Immigration and Customs Enforcement guidelines on age determination.

3. DEFINITIONS.

3.1 Bedding Any combination of pillow, sheets, blanket, sleeping bag, or mattress 3.2 Custody The period of time in which a detainee under arrest or is detained in a

Border Patrol hold room.

3.3 Hold Room An area such as a detention cell, a search room, or an interview room in which detained persons are temporarily held pending processing or transfer.

3.4 Open Area An area within a secure facility where the detainee is not in a

locked room but where there are locked doors to prevent escape (e.g. a processing room).

3.5 Direct Supervision Detaining a person in a location where the employee

assigned detention duties can constantly observe or hear the detainee. 3.6 Family Group …and juveniles…in custody at the same time and place. 3.7 Intermittent Supervision Detaining a person in a hold room where a detainee

may be occasionally out of view and/or hearing of the employee assigned detention duties.

3.8 Juvenile A person under 18 years of age.

3.8.1 Persons under the age of 18 who have been emancipated by a state court or convicted and incarcerated for a criminal offense as an adult are NOT considered juveniles. Such individuals must be treated as adults for all purposes, including confinement and release on bond.

3.8.2 If a reasonable person would conclude that an individual claiming to be a juvenile is really an adult, that person will be treated as an adult for all purposes, including transportation, confinement, and release on bond or own recognizance. Age determination will be conducted, if necessary, in accordance with Immigration and Customs Enforcement guidelines on age determination.

3.8.3 An unaccompanied alien child (UAC) is defined in Section 462(g)(2) of the Homeland Security Act of 2002 as a child who:

1.2.4.1 Has no lawful immigration status in the United States 2.2.4.1 Has not attained 18 years of age; and 3.2.4.1 With respect to whom—

1. There is no parent or legal guardian in the United States; or 2. No parent or legal guardian in the United States is available

to provide care and physical custody.

4. RESPONSIBILITIES.

4.1 The Chief, Office of Border Patrol, is responsible for policy oversight, which includes formulating and implementing guidelines and procedures.

4.2 Chief Patrol Agents (CPAs) are responsible for managing the implementation of this program at the sector level and monitoring compliance with the procedures to ensure uniformity of application, as well as for ensuring that all employees under their direction receive proper training concerning this policy and these procedures.

4.3 Patrol Agents in Charge (PAIC) are responsible for monitoring compliance at the station level.

4.4 Supervisory Border Patrol Agents are responsible for fulfilling all of their duties specified herein, and for ensuring the Border Patrol Agents under their direction are familiar with this policy and these procedures, and comply with them.

5. POLICY. 5.1 All persons arrested or detained by the Border Patrol will be held in facilities

that are safe, secure, and clean. Detainees will be provided food, water, properly equipped restrooms and hygiene supplies as set forth in this directive.

5.2 Detainees will be promptly processed and turned over to U.S. Immigration and Customs Enforcement (ICE), Office of Detention and Removal Operations (DRO); the Office of Refugee Resettlement (ORR); the U.S. Marshals service; or any other agency (OA), as appropriate.

6. PROCEDURES. 6.1 Detention Cells Search Rooms and Hold Rooms

6.1.1 Supervisors are responsible for designating areas as detention cells,

search rooms, and/or hold rooms and ensuring that employees under their direction are familiar with such designations and intended uses. Dual designation of a particular room is authorized, i.e. a detention cell may also be used as a search room.

6.2 Duration of Detention 6.2.1 Whenever possible, a detainee should not be held for more than 12

hours. Every effort will be made to promptly process, transfer, transport, remove, or release those in custody as appropriate and as operationally feasible.

6.2.2 The PAIC or the senior shift supervisor will be notified of all detentions at the station level that reach or exceed 24 hours, and they shall make every effort to promptly move the detainee(s).

6.2.3 The Sector Staff Duty Officer must be notified when the detention

period reaches or exceeds 72 hours, and the Staff Duty Officer or their designee shall make every effort to promptly move the detainee(s).

6.2.4 When the detainee in an unaccompanied alien child (UAC), effort must be made to move them out of the Border Patrol facility and into ORR placement within 12 hours, however, there are times when placement by ORR may take longer than 12 hours. The PAIC must be notified immediately when a UAC’s detention exceeds 24 hours; however, it is strongly encouraged that the PAIC be notified when the detention exceeds 12 hours. The PAIC or their designee will ensure that the ICE/DRO Field Office Juvenile Coordinator (FOJC) has been notified and ensure that the UAC is being held in accordance with this policy. The reason for the extended detention and the time and date that the PAIC and FOJC were notified will be documented in the Unaccompanied Alien Children Detention log and retained for a period of two years.

6.2.4.1 In accordance with Flores v. Reno Stipulated Settlement Agreement, UAC must be placed in an ORR-approved facility within 72 hours. In cases where the PAIC has reason to believe that the UAC’s detention will exceed 72 hours or exceeds 72 hours, the PAIC or their designee will notify a sector staff officer immediately. This notification may occur well before the 72 hour time period is reached if information is provided at an earlier time that indicated the UAC placement won’t be met under current conditions. The sector staff officer will contact the local ICE DRO Field Office Director for assistance and intervention.

6.2.4.1 Under extenuating circumstances, the maximum time allowed for placing UAC in an ORR-approved facility is five days. In cases where UAC are detained longer than dive days, sector staff will immediately contact the DRO liaison officer at the Office of Border Patrol via telephone and email for further guidance and assistance, ensuring that all pertinent information and actions taken thus far are provided. Sector staff may contact the DRO liaison officer earlier when they deem appropriate or necessary.

6.3 Exceptions to Short-Term Detention in Border Patrol Hold Rooms

6.3.1 Agents will expedite processing of detained persons who are pregnant, are known to be on life-sustaining or life-saving medication, appear ill, constitute family groups, or are persons of advanced age or UACs.

6.3.2 If circumstances permit, persons who are pregnant, are known to be on life sustaining or life-saving medication, or appear ill should not be detained in a Border Patrol hold room. They should be seated in an open area under the direct supervision and control of an agent. The determination to place these detainees in a hold room should be made on a case-by-case basis. Some factors that need to be considered when making this decision are workload, layout of facilities, staffing, and emergency situations. Agents should also ask the detainee whether medical training is necessary. If the detainee replies in the affirmative or if medical treatment appears necessary, agents will contact the appropriate medical personnel and a supervisor.

6.3.3 All detention options should be considered when detaining family units, unaccompanied alien children, and persons of advanced age. If the circumstances permit, the processing agent should consider detaining these persons in an open area under direct supervision rather than in a hold room. The decision to place family units, UACs, and persons of advanced age in hold rooms will normally be made by the processing agent, but may be made or overridden by a supervisor. Factors to consider include criminal history, health, demeanor, etc.

6.3.4 In cases where family groups are encountered but only the parent or legal guardian is detained, circumstances will dictate whether family members should be separated from the juvenile who is not detained. In cases where the juvenile must be separated from the family member(s), immediate arrangements should be made to care for the juvenile until an adult family member arrives to take custody or, custody is turned over to the Office of Refugee Resettlement or a social services agency.

6.3.5 Direct supervision and control of detainees must be maintained at all

facilities that do not have hold rooms.

6.4 Master Detention Log. 6.4.1 The ENFORCE apprehension log will serve as the master detention

log. It will contain at a minimum the detainee’s: a. Name b. Sex c. Age and date of birth d. Alien registration number e. Nationality

f. Reason detained g. Final disposition

6.4.2 Any alien detained in custody for removal proceedings or voluntarily

returned must be transferred via an I-216 created in ENFORCE.

6.5 Hold Room Monitoring. 6.5.1 Although video surveillance is an outstanding tool, it is not a

replacement for physical checks. Holding cells must be physically checked regularly. Physical checks give processing agents better control of aliens in their hold rooms, provide a deterrent for misconduct, and provide detainees with an opportunity to communicate issues such as health or safety concerns to the processing agent.

6.5.2 Juveniles. Unaccompanied alien children require direct supervision. Physical checks are a critical aspect of monitoring UACs. Holding cells must be physically checked regularly and recorded in a log. Each station will be responsible for creating a hold room check sheet to verify the physical checks of juveniles.

6.5.3 …

6.6 Alien Booking Record (I-385). An Alien Booking Record (I-385) will be

generated for each detainee that requires special handling (i.e., a detainee held for prosecution or removal of a detainee awaiting a voluntary return with a medical condition, or an unaccompanied juvenile). The Alien Booking Record will be posted near the entrance to the hold room or in a secure area. Any medical alerts (e.g., diabetic requiring injections) or significant remarks (e.g. high risk detainee or escape risk) will be annotated on the Alien Booking Record. The sheet will be maintained until the detainee is released from CBP custody. The fact that a detainee may have a medical alert or significant remark on his or her Alien Booking Record will be communicated during shirt change briefings and musters to all Border Patrol Agents assigned detention duties or to processing areas. The Alien Booking Record will be created in ENFORCE and contain the following detainee information: 6.6.1 Name 6.6.2 Alias 6.6.3 Sex 6.6.4 Date of birth 6.6.5 Place of birth 6.6.6 Country of citizenship 6.6.7 Alien registration number 6.6.8 Date apprehended

6.6.9 Responsible station or office 6.6.10 Medical alert—an annotation indicating that the person has a medical

condition that requires medical care or prescribed medication, has a communicable disease, is suffering from depression, or appears to be suicidal.

6.6.11 Remarks—for example, the person is an escape or flight risk, is a high risk detainee, is an asylum claimant, or is an accompanied or unaccompanied alien child.

6.7 Medical Issues: 6.7.1 Detainees needing medical attention or showing signs of serious

infectious disease or contagion (tuberculosis, severe acute respiratory syndrome, pandemic influenza, etc.) will be handled as set forth in this section:

6.7.2 Such detainees will be evaluated by qualified personnel:

a. An emergency medical technician (EMT) or a paramedic (Border Patrol or local); or

b. A physician, physician’s assistant, or nurse practitioner,

6.7.3 Persons that are in custody and show symptoms of serious infectious disease should be isolated if possible. Masks should be made available for the detainee and agents should encourage their use. Agents will wear appropriate personal protective equipment while exposed to the person.

6.7.4 A supervisor will be notified as soon as possible of detainees needing medical attention.

6.7.5 Medications. Border Patrol Agents will not administer or inject any

medication unless they are certified EMTs or paramedics practicing under the direction of a medical director and the administration of such medicine is within their scope of practice is authorized under the protocols of their medical practice. Medication prescribed in the United States, in a properly identified container, with the specific dosage indicated, may be self-administered under the supervision of a Border Patrol Agent. Administration of prescribed medication, medical assistance, or refusal of the same will be noted on the Alien Booking Record. Medications will not be left in the possession of the detainee. They will be secured separately, preferably with the detainee’s property. …

6.8 Meals. Detainees will be provided snacks and juice every four hours.

Detainees whether in a hold room or not, will be provided a meal if detained

more than 8 hours or if their detention is anticipated to exceed 8 hours. Regardless of the time in custody, juveniles will be provided with meal service, and at least every six hours thereafter; two of three meals must be hot. Juveniles, small children, toddlers, babies, and pregnant women will have regular access to snacks, milk, or juice at all times. When an adult detainee requests a snack or meal before the next meal service, the processing agent may grant the request on the basis of the circumstances. Agents should be sensitive to the culinary, cultural, and religious dietary restrictions and/or differences of all detainees and should provide a mean that conforms to the dietary restrictions, if feasible.

6.9 Drinking Water. Portable drinking water will be available to detainees. The supervisor is responsible for ensuring that drinking water is available.

6.10 Restrooms. Restrooms will be available to detainees. Detainees using the

restrooms will have access to toilet items; such as soap, toilet paper, and sanitary napkins. Families with small children will also have access to diapers and wipes.

6.11 Bedding. Detainees requiring bedding will be given clean bedding. Only

one detainee will use this bedding between cleanings. This bedding will be changed very three days and cleaned before it is issued to another detainee. Vinyl or rubber-coated mattresses will be disinfected before being reissued.

6.12 Inspection of Personal Property. Purses, handbags, backpacks, and

luggage will be inspected for weapons and contraband. They will be secured separately from the detainee until release or removal.

6.13 Control and Safeguarding of Detainees’ Personal Property. The control

and safeguarding of detainees’ personal property will include the secure storage of funds, valuables, baggage, and other personal property. All property will be receipted on the appropriate Form I-77. All items belonging to the detainee will be properly receipted and placed in a secure area.

6.13.1 All property and legal papers that are in the juvenile’s possession, or

are served upon the juvenile during processing, shall accompany the juvenile upon transfer to any other agency or facility. Property of the juvenile that is the custody of the Border Patrol that exceeds the limit of the transporting agency shall be shipped to that facility in a timely manner.

6.14 Showers. Agents will make reasonable efforts to provide a shower for any detainee held for more than 72 hours. Detainees that are showing will be provided a clean towel and basic toiletries. Agents will make every reasonable effort to provide unaccompanied alien children who are held more than 48 hours with access to a shower and clean towel, clean clothing, and basic

hygiene articles as soon as practicable. These items may be provided to UACs sooner, depending on availability and condition of the juvenile.

6.15 Inspection. Detention cells will be routinely inspected for evidence of tampering.

6.16 Cleaning and Sanitization. Supervisors will ensure that detention cells are

regularly cleaned and sanitized. Employees will not be expected nor required to perform such tasks.

6.17 Smoking. Smoking is prohibited in hold rooms. 6.18 Evacuation. Every station will have an evacuation plan and will post it in

the processing area. The PAIC is responsible for ensuring that agents are familiar with procedures in the evacuation plan.

6.19 Search Procedures. All detainees that are under arrest will be thoroughly

searched before being placed in a Border Patrol hold room. Detainees may not be strip searched unless there is a reasonable suspicion that a strip search of a particular detainee will yield weapons or contraband.

6.20 Restraint Procedures. … This should be annotated on Alien Booking

Record. Any detainee restrained in a holding room requires direct supervision …

6.21 Telephones. Persons detained more than 24 hours will be given access to a

telephone for the purposes of contacting an attorney or other party as stated on the I-826 Notice of Rights and Request for Disposition and will be given access at a minimum of once per day until they are no longer in Border Patrol custody. Detainees who wish to make other than a local card must use a calling card or collect call. Processing agents may, at their discretion, grant telephone access to any alien. Unaccompanied alien children will be given access to telephone as soon as practicable to aid in locating family members.

6.22 Segregation. …Unaccompanied children must be separated from unrelated

adults and must not be detained with unrelated adults in the same holding room…

6.23 Privacy. Border Patrol hold rooms should have privacy screens in toilet

areas whenever possible. Agents should make a reasonable effort to afford aliens of the opposite sex privacy and notice before viewing or entering a hold room without a privacy screen.

6.24 Juveniles. The following is a summary of guidelines from the Flores v.

Reno Settlement Agreement, and the Homeland Security Act of 2002. The terms of the Settlement are binding and must be adhered to.

6.24.1 Access to Legal Counsel and Consular Officials. All UACs shall be

advised of their rights as per Form I-770 Notice of Rights and Request for Disposition, which includes their right to make a telephone call to any persons mentioned in the notice. If the juvenile is under 14 or is unable to understand the form, the I-770 must be read and explained in a language that the juvenile understands. The UAC’s consular official must be notified as soon as possible, and notification of the UAC’s family must be in accordance with Form I-770. All UAC processed for removal must be given a list of free legal service providers. Each CPA, or designee, will ensure that the lists of free legal services providers are current, accurate, and provided to juvenile detainees. Free legal service providers must represent juveniles in removal proceedings. Updated lists will be distributed regularly to all Border Patrol stations.

6.24.2 Authority of the Office of Refugee Resettlement. ORR has assumed authority for decisions related to the care and placement of UACs detained in federal custody. The current procedure requites stations to immediately contact an ICE/DRO Field Officer Juvenile Coordinator (FOJC) to coordinate UAC placement in an ORR facility.

6.24.3 Procedures for Processing Juveniles. All juveniles will be processed

expeditiously … As soon as practicable after determining that a detainee is a UAC and will require detention, the processing agent should contact an ICE/DRO FOJC to obtain pre-authorization to place the unaccompanied alien child with ORR. The agent must obtain pre-authorization from the FOJC regardless of a UAC’s anticipated time in detention and must provide the following information: the juvenile’s name, any aliases, alien registration number, country of citizenship, sex, date of birth, age, date of entry, place of entry, manner of entry, date of custody, custody location, and indication regarding whether or not the juvenile is a criminal or non-criminal. The FOJC must have this information to secure placement for the UAC with ORR. The FOJC will contact the local ORR representative who will locate an appropriate placement and notify FOJC when that is completed. The FOJC will coordinate the placement transfer.

6.24.4 Separation of Juveniles from Unrelated Adults. Juveniles must be

separated from unrelated adults whenever practicable and must not be detained when unrelated adults in the same holding room. …

6.24.5 Transportation of Juveniles. Unaccompanied alien children arrested or

taken into custody should not be transported in vehicles with detained adults when separate transportation is practical and available. When separate transportation is impractical all necessary precautions should be taken for the juveniles protection and well-being.

6.24.6 Requirements of Juvenile Hold Rooms. Juveniles detained longer than

24 hours will be given access to basic hygiene articles, a blanket, and a mattress (a pillow is optional), etc. If showers are available, the juveniles will be permitted to take one shower every 48 hours and be provided with a clean towel. Agents and supervisors may give these items and privileges to any juvenile at any time based on the availability and the condition of the juvenile.

6.24.7 All hold rooms used for unaccompanied alien children must provide

access to the following:

a. Toilets and sinks b. Drinking water c. Adequate temperature control and ventilation d. Clean blankets and mattresses e. Meals, which must be offered every six hours (two of three meals

must be hot) f. Emergency medical assistance g. Direct supervision

6.24.8 Unaccompanied Alien Children Detention Log. Each Border Patrol

station must maintain a separate detention log (examples attached) for all juveniles placed in custody. The log will be kept on file at the station for two years. The log will contain, at minimum, the following information about each juvenile:

a. Name b. Sex c. Age d. Alien registration number e. Nationality f. Reason for placement g. Date and time in h. Date and time FOJC was notified i. Date and time out (transferred or released) j. Final disposition k. Comments l. Times that meals were provided

6.24.9 Meals. Juveniles must receive the next meal served, regardless of the

time in custody and must have regular access to snacks, milk, juice, etc. Meals must be offered every six hours (two of three meals must be hot).

6.24.10 Transfers. Each station must complete an I-216 in ENFORCE for all UACs transferred to ORR or DRO custody. A hard copy of the I-216 will be kept on file at the station for two years for the purpose of auditing and oversight.

6.24.11 Training Requirements. The Border Patrol Academy will include

training on the conditions of Flores v. Reno Settlement Agreement as a part of Border Patrol basic training. All CPA’s, PAIC’s and Border Patrol Agents will take at least one hour per year of refresher training on Flores and associated Border Patrol policy. Pertinent training updates will be well-posted in Border Patrol station processing areas to ensure awareness and adherence.

6.24.12 Family Groups (with Juveniles). The following are examples of

family groups as defined in section 4.6 of this directive. The following groups will be detained as a unit.

a. … b. … c. … d. … e. …

6.24.13 Documentation. Times of meals, showers, telephone use, and visual

checks of juveniles are held in custody will all be recorded.

7. PERFORMANCE MEASUREMENTS. All detainees will be held under safe and humane conditions. Unaccompanied alien children in Border Patrol custody will be treated with dignity, respect and special concern for their particular vulnerability as minors. 7.1 Performance Measurement 1: All detainees will be held in appropriate

conditions of confinement that ensure their safety and security. Juveniles will be held in the least restrictive setting appropriate for their age and special needs as minors. 7.1.1 Detainees are segregated according to sex, age, risk, family group.

7.1.2 Detention space capacity will not be exceeded

7.1.3 Hold rooms will be kept clean and free of contraband and other

potentially hazardous or dangerous materials. 7.2 Performance Measurement 2: All detainees will be held under humane

conditions of confinement that provide for their well-being and general good health.

7.2.1 Detainees have access to sanitary facilities and restrooms,

7.2.2 Detainees are provided food and water.

7.2.3 Detainees have access to appropriate medical services, prescriptions,

medications, and emergency medical treatment.

7.2.4 Detention spaces are approximately maintained and provide detainees with appropriate comfort items—housekeeping and clean bedding.

7.3 Performance Measurement 3: The time of detention for detainees is

minimized. 7.3.1 The period of detention does not exceed 24 hours, and commonly does

not exceed 24 hours for UACs.

7.4 Performance Monitoring Tools:

a. Sector and/or Station Detention Logs b. Form I-216 Record of Persons and Property Transferred c. Supervisor oversight d. Local inspection programs e. Reporting of deficiencies f. Periodic compliance summary reports

8. CANCELLATION. This policy remains in effect until cancellation by any

updated version.

9. NO PRIVATE RIGHTS CREATED. This document is an internal policy statement of U.S. Customs and Border Protection and does not create or confer any rights, privileges, or benefits on any person or party.

10. ATTACHMENTS. Appendix 1: Unaccompanied Alien Children Detention log

______..._______ David V. Aguilar Chief U.S. Border Patrol

APPENDIX 8.A Redacted I-213 (Interior Enforcement)

198

APPENDIX 8.B Redacted I-213 (Border Enforcement)

201

APPENDIX 9 Sample BIA Brief Regarding Alienage

205

123-456-789

KRISTEN JACKSON (Bar No. 226255) PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA 90005 Telephone (213) 385-2977, ext. 157 Facsimile (213) 385-9089 Attorneys for Respondent John Doe

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW BOARD OF IMMIGRATION APPEALS

In the Matter of: ) )

) File No. A 123 456 789 )

John Doe, ) ) ) In Removal Proceedings ) ___________________________________ )

RESPONDENT’S RESPONSE BRIEF

2 123-456-789

Respondent John Doe, through pro bono counsel Kristen Jackson, files this Response

Brief requesting that the Board affirm the Immigration Judge’s August 10, 2009 decision

terminating proceedings for DHS’s failure to establish John’s alienage.

Procedural History

On September 30, 2004, DHS created a Notice to Appear charging 14-year-old John as

removable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act. The NTA

alleged, among other things, that John is a native and citizen of Mexico and that he entered the

United States on or about June 1, 2000. This NTA was filed with the Immigration Court in San

Francisco while John was in federal custody. See Exh. 1. When John was released from federal

custody to his elderly father, his pro bono attorney Jane Roe filed a Motion to Change Venue to

Los Angeles. John See Motion for Change of Venue and Withdraw as Attorney of Record at 1-2

(dated Dec. 10, 2004). This Motion was granted. See Exh. 3.

On February 4, 2005, John appeared in the Los Angeles Immigration Court with Ms.

Jackson. Tr. at 3. He was given a one-week continuance to review the NTA he was given. Tr. at

7:25-8:9. On February 10, 2005, John returned to Immigration Court. Tr. at 10. Through counsel,

he: (1) declined to admit the factual allegations and concede removability; (2) asserted that he

was putting DHS to its burden of proving his alienage; and (3) stated that he needed time to

obtain essential documents from DHS. Tr. at 11:5-12:20. Over objection, Immigration Judge Ho

set a Merits Hearing for May 12, 2005. Tr. at 13:16-24.

The Merits Hearing did not go forward, however, because Kern County and then DHS

took John back into custody. John’s removal proceedings were returned to San Francisco in mid-

2005. See Exh. 6. By mid-October 2005, John had been re-released to his father, and Ms.

Jackson requested that Ms. Roe submit a Motion to Change Venue back to Los Angeles. Exh.

3 123-456-789

10-B (Declaration of Kristen Jackson ¶ 3). Ms. Roe did so. See Exh. 7. This Motion to Change

Venue, like the preceding one, was granted. See Order (dated Nov. 10, 2005).

On October 25, 2007 – after a series of delays in 2006 and 2007 related to John’s

inability to appear and Immigration Judge Einhorn’s retirement – John and Ms. Jackson appeared

before visiting Immigration Judge Weiss in Los Angeles. Tr. at 27. Ms. Jackson explained that

John was putting DHS to its burden to establish alienage. Tr. at 28:17-29:11. Judge Weiss asked

DHS what evidence it had to sustain the charge, and DHS counsel stated: “[I]f this is simply a

question of alienage, we’ll just have to call the – call witnesses. I don’t see anything in the file

that shows it but a date to call witnesses shouldn’t be a problem.” Tr. at 31:9-17. Judge Weiss set

the case over for a Master Calendar Hearing in July 2008 to allow time for DHS to produce the

evidence DHS intended to use to establish John’s alienage. Tr. at 31:23-32:19.

On July 1, 2008, John appeared before Immigration Judge Rodriguez de Jongh. Tr. at 33.

John declined to answer the Immigration Judge’s questions regarding alienage on Fifth

Amendment grounds, and Ms. Jackson explained that he was putting DHS to its burden of

establishing alienage. Tr. at 34:1-25. DHS filed a one-page I-213 dated July 11, 2005 as its only

evidence of John’s alienage. See Exh. 8. DHS counsel stated that he did not have a witness list

“but I imagine the officer might be one of the witnesses.” Tr. at 36:19-37:1. In response to the

Court’s question whether the I-213 “was all [DHS] ha[s]” in terms of documentary evidence,

DHS answered yes. Tr. at 37:6-9. The Court set a Merits Hearing solely on the issue of alienage

for September 25, 2008, and stated: “I expect both parties to be ready to proceed on something

that day.” Tr. at 37:10-16. The Court set a corresponding deadline of September 10, 2008 to

submit additional materials, but urged the parties to “get [materials] to me as early as you can.”

4 123-456-789

Tr. at 37:23-38:4. Ms. Jackson did so by submitting a pre-hearing brief and objections to Exhibit

8. See Exhs. 9-A, 9-B. DHS did not.

On September 25, 2008, John again appeared before the Court. Tr. at 40. At the start of

the proceedings, the Immigration Judge admonished DHS that “I explained to the government

that they needed to produce something else [in addition to Exhibit 8]. I was expecting to see the

officer who issued the I-213.” Tr. at 42:9-12. She stated: “I specifically said that, if I don’t have

the officer, I’m terminating these proceedings.” Tr. at 43:7-12. In light of new DHS arguments

regarding alienage, the Court set the case over for another hearing. Tr. at 44:14-46:22. DHS

counsel also stated: “If we’re having a brief continuance, we’ll arrange to get the officer present,

however, it appears from my records that the officer may be located in San Francisco area and,

therefore, we request that he be allowed to testify telephonically.” Tr. at 50:9-15. The Court set

the case over to February 10, 2009 for the Merits Hearing regarding alienage. Tr. at 55:15-19.

The corresponding deadline to submit additional materials was January 26, 2009. See

Immigration Court Practice Manual 3.1(b)(ii)(A) (requiring all filings of this nature to be

submitted at least 15 days in advance of the hearing). Ms. Jackson submitted additional

materials, including a supplemental pre-hearing brief and supporting declarations. See Exhs. 10-

A, 10-B. DHS did not.

On February 10, 2009, John again appeared before the Court for his Merits Hearing

solely on the issue of alienage. Tr. at 58. DHS – in contravention of the Immigration Court

Practice Manual 3.1(b)(ii)(A) (requiring all filings of this nature to be submitted at least 15 days

in advance of the hearing) – submitted a one-page I-213 dated September 3, 2004 as evidence of

John ’s alienage. See Exh. 11; Tr. at 68:18-22. It obtained a continuance to allow the assigned

DHS counsel to be present. Tr. at 67:23-68:22. The Immigration Judge set the case over to

5 123-456-789

August 10, 2009 for the Merits Hearing regarding alienage. Tr. at 74:14-17. She set a

corresponding deadline of 30 days before the hearing to submit additional materials, including a

witness list if DHS was going to present the officer who created the I-213s. Tr. at 75:4-20, 79:11-

22. Ms. Jackson filed supplemental materials, including a witness list, a motion for telephonic

testimony, objections to Exhibit 11, and a second supplemental pre-hearing brief. See Exhs. 12-

A, 12-B, 12-C, 12-D. DHS did not.

On August 10, 2009, John appeared before the Court for his final removal hearing. Tr. at

82. While marking exhibits, the Immigration Judge asked if DHS had available the officer who

prepared Exhibit 11, and DHS counsel said no. Tr. at 97:9-18. DHS counsel argued that on the

record before the Court, “alienage has been proven by clear and convincing evidence.” Tr. at

99:22-100:7. Ms. Jackson presented the arguments outlined in the pre-hearing briefs. Tr. at

100:12-101:13. The Immigration Judge noted, although DHS disagreed, that John could exercise

his Fifth Amendment privilege not to answer incriminating questions in his removal proceedings

– and mentioned the Ninth Circuit case of Lopez-Chavez. v. INS, 259 F.3d 1176 (9th Cir. 2001).

Tr. at 103:12-104:1.

In response to DHS concerns that attacks on the I-213s must be supported by testimonial,

not merely written, statements, Ms. Jackson put John on the stand to testify as to the

circumstances regarding the creation of the I-213s as well as the characteristics that make them

unreliable. Tr. at 113:16-114:8. He testified consistent with his declaration as to Exhibit 11 that:

(1) he did not provide DHS with the information on the form on or before September 3, 2004; (2)

the information on the form did not come from him and he does not know where the information

came from; (3) the date of entry and his mother’s name are incorrect; and (4) he was not advised

of communication privileges on September 3, 2004. Tr. at 115:19-117:9. He testified consistent

6 123-456-789

with his declaration as to Exhibit 8 that: (1) he did not provide DHS with the information on the

form on September 14, 2004 or July 11, 2005; (2) the information on the form did not come from

him and he does not know where the information came from; (3) the date of entry, his mother’s

name, and his age are incorrect; and (4) he was not advised of communication privileges on July

11, 2005. Tr. at 117:10-120:14.

At the beginning of cross-examination, Ms. Jackson clarified that she could invoke the

Fifth Amendment on John’s behalf. Tr. at 121:8-122:7. On cross-examination, John testified that

he was first in DHS custody in late September 2004 – perhaps the 28th or the 30th. Tr. at 124:4-

15. In an attempt to impeach John, DHS counsel submitted a fingerprint card. Tr. at 125:12-

127:6. She was not, however, able to undermine his testimony. Tr. at 127:7-129:1. John testified

more specifically that his mother’s last name is Camacho, not Doe, and that her first name was

misspelled. Tr. at 129:17-130:10. Ms. Jackson asserted John’s Fifth Amendment privilege during

the cross-examination. Tr. at 130:9-19. At the end of John’s testimony, DHS counsel asked for a

continuance to have the deportation officer testify telephonically. Tr. at 132:3-6. The

Immigration Judge responded: “If you want the officer to testify, you have to bring him. I don’t .

. . the Government has had four years to establish alienage in this case and I’m going to

terminate proceedings. The Government can refile if it’s got some better evidence here.” Tr. at

132:7-11.

At the end of the hearing, the Immigration Judge stated: “I’m terminating these

proceedings and I’m terminating these proceedings strictly on the law. I want everyone to

understand.” Tr. at 132:16-18. She stated that the documents DHS had submitted were not

enough to establish alienage. Tr. at 132:23-133:3. She cited the case of Lopez-Chavez v. INS, 259

F.3d 1176 (9th Cir. 2001) for the proposition that DHS must prove alienage by clear, convincing,

7 123-456-789

and unequivocal evidence. Tr. at 136:10-20. She also cited United States v. De Leon-Ortiz, 274

Fed. Appx. 577 (9th Cir. April 21, 2008) for the proposition that the burden to prove alienage is a

jurisdictional, rather than a simple evidentiary, issue. Tr. at 136:21-137:4. She terminated the

proceedings without prejudice to give DHS an opportunity to re-file, and both parties reserved

appeal. Tr. at 132:10-11, 137:5-8. DHS filed its appeal on September 8, 2009.

In its brief before the Board, DHS argues that the Immigration Judge erred in finding that

DHS did not establish John’s alienage because DHS submitted “clear and convincing evidence”

and John did not rebut the evidence. DHS brief at 3. Further, it claims that the Immigration Judge

erred by allowing John to assert his Fifth Amendment privilege in removal proceedings. DHS

brief at 5.1

Statement of the Issue Presented for Review

Whether the Immigration Judge properly found that DHS failed to establish John’s

alienage, as it must, by clear, unequivocal, and convincing evidence at a hearing in which she

properly handled the burden of proof and honored John’s Fifth Amendment privilege against

self-incrimination.

Standard of Review

The Board may review “de novo all questions of law, discretion, and judgment, including

the question whether the parties have met the relevant burden of proof.” Matter of Martinez-

Serrano, 25 I&N Dec. 151, 152 (BIA 2009); 8 C.F.R. § 1003.1(d)(3)(ii).

1 DHS originally took the position that statements in Ms. Roe’s Motions to Change Venue and Withdraw as Attorney of Record established John’s alienage. Tr. at 44:14-17. The Immigration Judge rejected this argument. Tr. at 104:4-113:15. Because DHS does not raise this as error in its Notice of Appeal or its brief, we do not address it here. The full arguments regarding Ms. Roe’s statements are found in Exhibits 10-A, 10-B, and 12-D.

8 123-456-789

Summary of the Argument

As a general rule, properly authenticated I-213s can establish alienage. See Lopez-

Chavez, 259 F.3d at 1178. That I-213s generally can establish alienage, however, does not mean

that every I-213, no matter how defective, can serve that purpose. See Murphy v. INS, 54 F.3d

605, 610-12 (9th Cir. 1995); Matter of Mejia-Andino, 23 I&N Dec. 533, 538 (BIA 2002)

(concurrence). John established through evidence and legal argument that the I-213s here

(Exhibits 8 and 11) failed that test – that is, he rebutted the I-213s – and thus the Immigration

Judge lacked jurisdiction over his case. See Murphy, 54 F.3d at 609. In the process, the

Immigration Judge properly protected John’s Fifth Amendment rights.

Argument I. This Case Involves “Considerations and Principles of Special Care” Because It Involves the Alienage of a Juvenile.

It is important for the Board to note that DHS first apprehended John when he was

merely 14 years old. Although John is now 20, DHS created its I-213s (Exhibits 8 and 11) and

prosecuted most of his removal proceedings when he was a child. Thus the analysis of his

alienage must be conducted through the lens of the “considerations and principles of special

care” accorded to juveniles. See Matter of Gomez-Gomez, 23 I&N Dec. 522, 524 (BIA 2002);

see also Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045 (9th Cir. 2007) (requiring the BIA to

evaluate harm through the eyes of seven- and nine-year-olds, the ages of the 22- and 24-year-old

respondents when key events occurred).

Using this lens requires acknowledging that immigration officers working with juveniles

have heightened duties of investigation and reporting, as outlined below, and thus should be held

to a higher standard in creating I-213s for juveniles. An Immigration Judge’s exercising “special

care” also means conducting a comprehensive and independent inquiry into evidence allegedly

9 123-456-789

proving a juvenile’s alienage, as the Immigration Judge did here. See Matter of Amaya-Castro,

21 I&N Dec. 583, 586-87 (BIA 1996) (noting that “an Immigration Judge must exercise

particular care in determining [a child’s] deportability”).

Finally, it means keeping in mind the challenges all children face in interacting with

immigration authorities – issues of “age, development, experience and self-determination” – as

well as those particular to unaccompanied and unrepresented children, as John was at times

important to his case. See Michael J. Creppy, Chief Immigration Judge, U.S. Dep’t of Justice,

Executive Office for Immigration Review, Guidelines for Immigration Court Cases Involving

Unaccompanied Alien Children, at 2 (Sept. 16, 2004). In this case, the Immigration Judge was

particularly sensitive to these issues with a young respondent while basing her decision entirely

on governing case law. See, e.g., Tr. at 53:9-55:9, 132:16-18.

II. The Immigration Judge Correctly Handled the Burdens of Proof and Properly Determined That DHS Did Not Meet Its Burden to Establish John ’s Alienage.

The Immigration Judge terminated these proceedings because of DHS’s failure to

establish John’s alienage. IJ at 1; Tr. at 132:7-133:6. This was entirely proper. The evidence

DHS submitted did not establish John’s alienage by “clear, unequivocal and convincing

evidence.” See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005) (citing

Woodby v. INS, 385 U.S. 276, 286 (1966)).2 DHS now disputes the manner in which the

Immigration Judge conducted the final hearing. DHS brief at 4-5. Essentially, it complains that

she failed to shift the burden to John and she protected John’s Fifth Amendment rights. Id. DHS

is wrong. John did meet his burden to discount the I-213s. The Immigration Judge conducted the

2 Language in some BIA and Ninth Circuit opinions suggests that the evidence need only be “clear and convincing” but not “unequivocal.” Whichever standard is used, unequivocal or not, the result is the same: The Immigration Judge correctly found that DHS did not meet its burden of proving John’s alienage.

10 123-456-789

hearing correctly and found, rightly, that Exhibits 8 and 11 did not pass muster. The arguments

presented to her, and upon which she relied, are outlined below. Tr. 132:23-133:3.

A. DHS’s I-213s, Exhibits 8 and 11, Are Fatally Flawed. 1. The Information in Exhibits 8 and 11 Did Not Come from John .

I-213s are presumed inherently trustworthy and capable of establishing alienage in

significant part because they are “essentially a recorded recollection of a [DHS agent’s]

conversation with the alien.” Espinoza v. INS, 45 F.3d 308, 308 n.1 (9th Cir. 1995) (citation

omitted). Indeed, I-213s are typically regarded as records of the subject’s own statements – that

is, created from “information out of the alien’s mouth.” Id. at 310.

Source, then, is highly relevant to an I-213’s reliability. The Ninth Circuit, in finding I-

213s admissible to prove alienage, has repeatedly relied heavily upon the fact that the undisputed

source of the particular I-213’s information was the respondent himself. See, e.g., Lopez-Chavez,

259 F.3d at 1181 (upholding alienage where there was “no evidence that the information on the

form was obtained . . . from anyone other than Lopez-Chavez himself”); Fernandez-Perez v.

Gonzales, 226 Fed. Appx. 737, 738 (9th Cir. 2007) (unpublished) (holding that an I-213

established alienage where the respondent “has not alleged that the statements [on the I-213]

were not her own”). More importantly, in cases where an I-213’s source is disputed or is found

not to be the respondent himself, the Ninth Circuit has found that that I-213 alone cannot meet

the government’s burden. See Hernandez-Guadarrama, 394 F.3d at 680-81 (giving an I-213 no

weight where its source was not the respondent); Murphy, 54 F.3d at 610-11 (concluding that an

I-213 merited little if any weight when the source of the information was in doubt).

The BIA has repeatedly concluded the same. See Matter of Ponce-Hernandez, 22 I&N

Dec. 784, 785 (BIA 1999) (upholding an in absentia removal order where there was “nothing to

11 123-456-789

indicate that [the I-213’s information] came from anyone other than the respondent”); Matter of

Barcenas, 19 I&N Dec. 609, 611 (BIA 1988) (upholding a deportation order where the I-213

“reflects that [the officer] completed the form based upon admissions made by the respondent”).

Under these precedents, Exhibits 8 and 11 are clearly unreliable. John disputed the source

of Exhibits 8 and 11’s information. He denied that he supplied this information to ICE himself at

times relevant to the documents’ creations. See Exh. 9-B (Declaration of John Doe ¶¶ 5, 7); Exh.

12-B (Second Supplemental Declaration of John Doe ¶¶ 5, 7); Tr. at 115:19-120:4. He did not

know who did supply the information, or when or how it was supplied. Id. Although it is possible

that some of the information came from juvenile court records or the Kern County Probation

Department, both referenced on Exhibit 8’s face, that is not clear. Exh. 9-B ¶ 2; Exh. 12-B ¶ 2.

Like the government in Hernandez-Guadarrama and Murphy, DHS here cannot use these

ambiguously sourced I-213s to prove John’s alienage.

DHS contends that John’s testimony regarding Exhibits 8 and 11 is “self-serving” and

thus implies it must be viewed with suspicion. But the question is not whether his testimony is

favorable to him, but whether it was credible. See Matter of S- M- J-, 21 I&N Dec. 722, 741

(BIA 1997) (“It is critical to understand the anomaly created by the concept of ‘self-serving

documentation.’ The fact that such evidence may advance an applicant’s cause does not mean it

is not admissible or entitled to due weight.”) And credible it was. John testified in person under

the scrutiny of the Immigration Judge. DHS cross-examined him and he answered all questions –

aside from those that he was not obligated to answer under the Fifth Amendment – fully. He

survived DHS attempts to impeach him. Unsurprisingly, the Immigration Judge made no adverse

credibility finding and thus regarded John ’s statements that he was not the source of Exhibits 8

and 11’s information as true.

12 123-456-789

2. Material Information on Exhibits 8 and 11 Is Incorrect.

Obviously, when DHS is using an I-213 to sustain its burden, it is of the utmost

importance that the document itself contain correct information. Both the Ninth Circuit and the

BIA have acknowledged that errors on an I-213 undermine the document’s evidentiary value. In

upholding the use of I-213s in numerous cases, they have noted that the result would be different

if the I-213s contained errors. See Espinoza, 45 F.3d at 310 (concluding that an I-213 alone

would not be clear and convincing evidence of alienage when a respondent produced evidence

contradicting material information on the I-213 itself); Fernandez-Perez, 226 Fed. Appx. at 738

(upholding the admission of the I-213 where “[p]etitioner has not presented any evidence

contradicting the challenged [I-213]”); Gomez-Gomez, 23 I&N Dec. at 524 (observing that an I-

213 is deemed inherently trustworthy and admissible to prove alienage only “absent any

evidence that [it] contains information that is inaccurate”); Ponce-Hernandez, 22 I&N Dec. at

785 (same).

This is hardly surprising. Incorrect information on an I-213, taken as true, could lead to

disastrous results. A U.S.-born citizen whose I-213 shows him as born in Honduras may receive

a removal order on the basis of this inaccurate information. A person who entered the U.S. years

before the I-213 states he did may be presumed not to qualify for important forms of relief,

including cancellation of removal. Incorrect information on children’s I-213s is of particular

concern, given a child’s more limited ability to “understand[] whether the factual allegations

made against him are accurate,” as well as the challenges of his “age and pro se and

unaccompanied status.” Amaya-Castro, 21 I&N Dec. at 586-87 & n.4 (holding that a 13-year-old

child’s factual admissions in court, after comprehensive inquiry, could establish his alienage but

13 123-456-789

the I-213 itself could not serve that purpose). Problems with accuracy can arise from an officer’s

own misapprehensions or from the child’s faulty or clouded memory.

Here, John disputed the accuracy of Exhibits 8 and 11 in that they, at the very least,

contain an incorrect date of entry. Exh. 9-B ¶ 8; Exh. 12-B ¶ 8; Tr. at 116:24-117:1, 120:5-7. He

also established that they contain an incorrect name for his mother. Exh. 9-B ¶ 8; Exh. 12-B ¶ 8;

Tr. at 116:24-117:1, 120:10-11. Further, he established that he was not 14 years old on July 11,

2005 as Exhibit 8 reflects. Exh. 9-B ¶¶ 9-10. John’s declarations and his credible testimony on

direct and cross-examination are evidence of these errors. See Espinoza, 45 F.3d at 310

(concluding that evidence of inaccuracy is needed, as opposed to mere suspicion). DHS now

complains that John “presented no other evidence of the errors he alleges on Exhibits 8 and 11.”

DHS brief at 5. Yet it cites no case law to suggest that more was required. Indeed, it was not.

John’s declarations and credible testimony are enough to meet his burden to discount the

reliability of Exhibits 8 and 11, as no Ninth Circuit or BIA case has required extensive or

detailed evidence to establish the inaccuracy of an I-213. The defects in these Exhibits are clear,

and the Immigration Judge properly found they did not establish John’s alienage.

3. Exhibits 8 and 11 Lack Detail.

In a case such as this, detail is key to an I-213’s ability to sustain DHS’s burden. The BIA

was careful to state in its most recent precedent decision addressing I-213s in depth:

We emphasize that while generally considered to be reliable and sufficient to establish alienage, not every Form I-213 that alleges alienage must be ultimately so found. The Service would be well advised to include as many indicia of trustworthiness regarding the information in that document as are practicable, such as the source of the information and the circumstances of the alien’s apprehension, as was done here.

Gomez-Gomez, 23 I&N Dec. at 526. This was not new: the BIA’s prior decisions “did not go so

far as to hold that any allegation of alienage in a Form I-213, however conclusory, is sufficient to

14 123-456-789

meet the Service’s burden of proof.” Id. at 526 n.5. In a notable case in which an I-213 was used

to establish a juvenile’s alienage in in absentia proceedings, the BIA was careful to note that it

was the “detailed information” in that particular form, combined with absolutely no challenge to

the use of the form itself, that sustained the government’s burden. See id. (citing Ponce-

Hernandez, 22 I&N Dec. at 786-87); see also Mejia-Andino, 23 I&N Dec. at 538 (concurrence)

(recognizing that Ponce-Hernandez relied heavily on the “detailed information” attributed to the

juvenile).

In an apparent acknowledgement of the need for details to sustain its burden in children’s

cases, DHS requires its officers to include in-depth information on juveniles’ I-213s. The

Juvenile Protocol Manual created by the Office of Detention and Removal makes clear that

officers “should obtain as much detailed biographical information as possible.” U.S. Dep’t of

Homeland Security, Detention and Removal Officer’s Field Manual Appendix 11-4: 2.1.1,

available at http://www.aila.org (updated through Nov. 2003). Officers are instructed to ask the

juvenile about 12 topics not covered on the I-213 form itself and to “add [the resulting

information] to the narrative of the I-213 Form.” Id. at 2.1.3.

These guidelines simply were not followed here. Exhibit 11 does not contain much of the

basic information requested on the form itself, including information about any: (1) U.S. and/or

permanent address; (2) city and state of birth; (3) Social Security number; (4) funds; (5) scars

and marks; or (6) FBI number. Exhibit 8 lacks this same information (aside from scars and

marks) and also lacks information on (7) passport; (8) visa; (9) parental addresses; and (10)

employment. Exhibits 8 and 11 do not indicate whether John had been advised of his

communication privileges and, as discussed above, they do not indicate the source of their

information. Exhibit 8’s narrative, which is three sentences with a total of 44 words, clearly does

15 123-456-789

not cover the 12 topics outlined in the Juvenile Protocol Manual. Exhibit 11 references

“attachments” but includes none. The narrative portion of Exhibit 11 talks about John’s juvenile

court record and his family situation, but is completely devoid of information regarding John’s

alienage or anything related to alleged date, place, or manner of entry. Further, like Exhibit 8,

Exhibit 11 does not cover the 12 topics outlined in the Juvenile Protocol Manual. Obviously an

officer need not write a novel about each juvenile for whom he issues an I-213. But he does need

to do more than was done in John’s case. Under existing BIA precedent, these skeletal I-213s –

created when John was only 14 and 15 years old – fall short of establishing his alienage.

4. Additionally, a Substantial Gap Exists Between When the Information Was Collected and When Exhibit 8 Was Created.

I-213s are given a presumption of inherent trustworthiness in part because they are

considered documents created in the normal course of business, “in accordance with normal

recordkeeping requirements.” See Espinoza, 45 F.3d at 308 (also noting that “border agents

routinely complete [the I-213s] after interviewing aliens”); Matter of Rojas, 15 I&N Dec. 722,

723 (BIA 1976) (describing immigration officers’ “unvarying practice” in creating I-213s).

Part of the “normalcy” of the I-213 is its creation in relatively short order after the

immigration officer obtains information on its subject. Indeed, DHS’s own Office of the

Inspector General acknowledges that the initial processing of juveniles – completed before DHS

determines whether the youth will be voluntarily returned across the border, released to a

sponsor pending removal proceedings, or detained – includes both gathering information on the

juvenile and “completing necessary immigration paperwork, such as the Forms I-213 and I-770.”

Office of Inspector General, U.S. Dep’t of Homeland Security, A Review of DHS’

Responsibilities for Juvenile Aliens, at 8 (Sept. 2005). Creation of the I-213 shortly after

information gathering is also common in other parts of DHS. See, e.g., Refugee, Asylum and

16 123-456-789

International Operations Directorate, U.S. Citizenship & Immigration Services, Affirmative

Asylum Procedures Manual, at 45 (Nov. 2007) (noting that the I-213, if required, is to be created

before a case is referred to Immigration Court).

In this case, Exhibit 8 was created over nine months after John was placed in removal

proceedings – and nearly ten months after the “date of action” listed on Exhibit 8. Compare NTA

dated September 30, 2004 with Exh.8. Presumably, DHS had already obtained the information

on Exhibit 8, which is repeated on the NTA, before his case was filed in Immigration Court. John

did not provide any of the information on Exhibit 8 in July 2005. Exh. 9-B ¶ 7; Tr. at 119:22-24.

Thus, a significant period of time passed between the information collection and its recording in

Exhibit 8. This passage of time impacts the information’s reliability. Cf. Immigration Officer

Academy, U.S. Citizenship & Immigration Services, Asylum Officer Basic Training Course 2:7

(Sept. 2006) (acknowledging that facts of cases may blur when case assessments are written at a

time removed from the asylum interview, even later the same day). The Ninth Circuit has

recognized that “the time lapse between the gathering of the information and its recording [on

the I-213]” is an important consideration in determining whether an I-213 sustains the

government’s burden. Murphy, 54 F.3d at 611. Where, as here, Exhibit 8’s creation lags long

after the information collection with no indication that the information was otherwise accurately

recorded in the interim (given the defects outlined above in Exhibit 11), Exhibit 8 falls short of

DHS’s burden for this additional reason.3

3 We cannot comment upon the gap in time between information collection and recording in Exhibit 11 because we have no evidence reflecting when the information there was gathered. John disputed that he was the source of this information on or before September 3, 2004, the date Exhibit 11 was created. Exh. 12-B ¶ 5; Tr. at 115:20-116:23.

17 123-456-789

B. The Immigration Judge Properly Denied DHS’s Request for a Continuance.

DHS has not explicitly argued – nor could it – that the Immigration Judge erred by

refusing it additional time to call the immigration officer who prepared the flawed Exhibits 8 and

11 to testify. DHS brief at 5. The record reflects that the Immigration Judge acted well within her

“broad discretionary authority over continuances” in denying DHS’s request. Matter of Hashmi,

24 I&N Dec. 785, 788 (BIA 2009).

The Immigration Judge had the discretion to grant a motion for a continuance “for good

cause shown.” 8 C.F.R. § 1003.29; see also 8 C.F.R. § 1240.6 (providing that the Immigration

Judge may grant a reasonable continuance sua sponte or, for good cause shown, upon application

by the respondent or DHS). Under Board precedent, motions for more time to prepare or to

obtain additional evidence “must be accompanied, at a minimum, by a ‘reasonable showing that

the lack of preparation occurred despite a diligent good faith effort to be ready to proceed and

that any additional evidence . . . is probative, noncumulative, and significantly favorable’” to the

moving party. Hashmi, 24 I&N Dec. at 788 (quoting Matter of Sibrun, 18 I&N Dec. 354, 356

(BIA 1983)).

DHS utterly failed to show good cause for its requested continuance. It was silent before

the Immigration Judge on any diligent good faith effort to be ready to proceed at the August 10,

2009 hearing regarding alienage. DHS brief at 5; Tr. at 132:3-13. Indeed, DHS admitted at a

previous hearing that it had not reached the officer to assess his availability to testify despite the

Immigration Judge’s directive. Tr. at 42:3-43:19; see also Tr. at 75:4-20. It gave absolutely no

indication of what the officer would state or any reason that the testimony must be considered

essential. DHS actually continues to treat the testimony as nonessential, arguing that it is

unnecessary to establish alienage. DHS brief at 5. Additionally, the Immigration Judge had

18 123-456-789

previously set the case over when DHS was unprepared to go forward and had warned both

parties that they must file all evidence and witness lists 30 days in advance of the August 10,

2009 hearing regarding alienage. Tr. at 67:23-68:22, 74:18-75:3, 79:11-24; see also Ahmed v.

Holder, 569 F.3d 1009, 1012-13 (9th Cir. 2009) (articulating additional factors relevant to

continuances).

DHS cites as a reason for a further continuance that “the immigration officer was located

in San Francisco, and the respondent’s proceedings were held in Los Angeles.” DHS brief at 5.

This did not justify a continuance. John made a witness in San Francisco available for the August

10, 2009 hearing. Exhs. 12-A, 12-C. He did that well within the parameters set by the

Immigration Judge and the Immigration Court Practice Manual. Id.; Tr. at 79:11-24. If John,

proceeding with pro bono counsel and with limited means, can do this, then so too can DHS –

with all of the federal government’s resources at its disposal. Prior DHS counsel agreed. Tr. at

50:9-15 (on September 25, 2008, DHS stated, “If we’re having a brief continuance, we’ll arrange

to get this officer present, however it appears from my records that the officer may be located in

San Francisco area and, therefore, we request that he be allowed to testify telephonically.”).

DHS was on notice for over four-and-a-half years that John was contesting removability.

Tr. at 11:9-19. The Immigration Judges involved in this case repeatedly addressed whether DHS

was making witnesses, including the officer, available. Tr. at 31:9-17, 36:23-37:1, 50:3-52:4,

56:9-22, 75:4-20. There was no element of surprise here. Whether its lack of preparation was

strategy or oversight, DHS properly was put to its burden at the August 10, 2009 hearing. The

Immigration Judge soundly exercised her discretion in accordance with the law when she

rejected DHS’s request for additional time unsupported by good cause.

19 123-456-789

C. That John Was Present and Objected to Exhibits 8 and 11 Is Itself Significant.

Time and time again, both the Ninth Circuit and the Board have declined to rule in favor

of any respondent who fails to object to an I-213 or offer evidence of its deficiencies before the

Immigration Judge. This is true when respondents fail to assert themselves in removal

proceedings. See Navarro-Martinez v. Mukasey, 271 Fed. Appx. 585, 585 (9th Cir. 2008)

(unpublished) (“[T]he I-213 was admitted without objection.”); Barcenas, 19 I&N Dec. at 611

(noting that the respondent failed to produce evidence to challenge any aspect of the I-213). It is

also true when respondents fail to show up for their proceedings at all. See Gomez-Gomez, 23

I&N Dec. at 524 (noting that the respondents, by failing to appear, clearly did not produce any

evidence regarding the I-213’s deficiencies); Ponce-Hernandez, 22 I&N Dec. 785-86

(concluding that the respondent waived his ability to challenge the I-213 because he failed to

appear).

John clearly did not take such an approach. He filed two sets of Objections to Evidence

as well as multiple pre-hearing briefs and declarations. He testified on direct and cross-

examination in support of his position and to meet his burden to discount the I-213s. John

vigorously opposed the use of Exhibits 8 and 11 against him. The seemingly constant use of I-

213s against respondents in removal proceedings should not create the illusion that they are

invincible. When, as here, unreliable I-213s were introduced and the respondent strongly

objected and produced evidence to undermine them, the Immigration Judge was well within her

power to conclude that DHS has failed to prove alienage.

In assessing the use of I-213s to prove alienage, the Ninth Circuit has made clear that

“[t]he burden of establishing a basis for exclusion of evidence from a government record falls on

the opponent of the evidence, who must come forward with enough negative factors to persuade

20 123-456-789

the court not to admit it.” Espinoza, 45 F.3d at 310. John has met his burden here: Exhibits 8 and

11’s dubious sources, inaccuracy, and lack of detail as well as the temporal gap between

investigation and the creation of Exhibit 8 properly persuaded the Court not to credit it. Thus,

DHS’s argument that the Immigration Judge “fail[ed] to shift the burden of proof to the

respondent to rebut the evidence of alienage submitted by the Department,” DHS brief at 1, falls

flat. John met his burden, and the Immigration Judge followed the law in her treatment of

Exhibits 8 and 11.

III. The Immigration Judge Properly Allowed John to Invoke His Fifth Amendment Privilege in the Face of Questions Regarding Alienage. The Immigration Judge protected John’s constitutional rights and followed lines of case

law from the Supreme Court to the Board when she allowed John to invoke his Fifth Amendment

privilege in the face of questions regarding alienage. Her failure to do so clearly would have

constituted reversible error. DHS’s arguments to the contrary are baseless.

The Fifth Amendment privilege against self-incrimination may be asserted in a variety of

proceedings – including criminal, civil, judicial, and administrative. Kastigar v. United States,

406 U.S. 441, 444 (1972). Respondents have done so for decades in immigration court

proceedings with judicial and Board approval. See, e.g., Garcia-Quintero v. Gonzales, 455 F.3d

1006, 1019 (9th Cir. 2006); United States v. Alderete-Deras, 743 F.2d 645, 647 (9th Cir. 1984);

Matter of Carrillo, 17 I&N Dec. 30, 32-33 (BIA 1979).

As DHS correctly points out, a respondent cannot assert a Fifth Amendment privilege

against every conceivable question. Instead, it must be against a question whose answer could

incriminate him in criminal proceedings. See, e.g., Garcia-Quintero, 455 F.3d at 1019 (“The

Fifth Amendment privilege against self-incrimination applies in removal hearings where the

alien’s testimony could expose him to future criminal prosecution.”); Alderete-Deras, 743 F.2d

21 123-456-789

at 647 (“[A]n alien may assert his fifth amendment right to refuse to answer questions in a

deportation hearing if the answers would incriminate him on a criminal matter.”); Carrillo, 17

I&N Dec. at 32-33 (“The respondent could refuse to answer, on Fifth Amendment grounds, any

question he reasonably believed might have a tendency to incriminate him or furnish proof of a

link in a chain of evidence.”).

Questions regarding alienage fit precisely into this category. A concession of alienage in

removal proceedings could expose a respondent to a range of criminal prosecution – including

prosecution under 8 U.S.C. §1325(a). See 8 U.S.C. §1325(a) (“An alien who . . . enters or

attempts to enter the United States at any time or place other than designated by immigration

officers . . . shall, for the first commission of any such offense, be fined under title 18, United

States Code, or imprisoned not more than 6 months, or both . . . .” (emphasis added)). Alienage

is an essential element of this offense. See United States v. Montecinos-Rivera, 2009 U.S. Dist.

LEXIS 104541, *3 (S.D. Texas 2009) (citing United States v. Flores-Peraza, 58 F.3d 164, 166-

67 (5th Cir. 1995)). It is thus a proper subject of the Fifth Amendment privilege. Cf. Bigby v.

INS, 21 F.3d 1059, 1060 (11th Cir. 1994) (reversing the Board on invocation of Fifth

Amendment privilege where the Immigration Judge compelled respondent to answer questions

regarding alienage despite his attorney’s concern for “danger of prosecution for criminal offenses

that include alienage as an element”). The Constitution squarely protects John from being

compelled to answer questions regarding alienage, and the Immigration Judge was bound to

respect this principle.

DHS cites United States v. Costello, 222 F.2d 656 (2d Cir. 1955) for the proposition that

John cannot assert his Fifth Amendment privilege because “questions regarding alienage do not

subject a respondent to criminal liability.” DHS brief at 6. This takes Costello too far. In that

22 123-456-789

case, the defendant was a naturalized citizen. Id. at 659. He refused to answer a range of

questions from birthplace to acquaintance with two witnesses. Id. at 661-62. The court simply

observed that it could identify no substantive crime or ongoing conspiracy that would subject the

defendant to prosecution – particularly given the 29 years that had passed since the defendant’s

naturalization. Id. at 662. An alleged alien’s entry without inspection, and its attendant criminal

liability, was not at issue in that non-binding case. Its holding was thus limited, not broadly

reaching as DHS wishes it to be.

DHS also argues that the Immigration Judge erred in relying upon Lopez-Chavez v. INS,

259 F.3d 1176 (9th Cir. 2001) because that case did not squarely address whether a respondent

can assert a Fifth Amendment privilege against questions going to alienage. It is true that the

Fifth Amendment privilege “against self-incrimination regarding alienage” came up only in

Lopez-Chavez’s procedural discussion. Id. at 1178. However, that the Immigration Judge

intimated that Lopez-Chavez stood for the principle that John has a Fifth Amendment right not to

answer questions relating to alienage does not mean that John in fact has no right. While a Ninth

Circuit panel might squarely address this precise issue in a later opinion, until then an

Immigration Judge need not disregard Lopez-Chavez’s tacit approval of the Fifth Amendment

invocation. See United States v. Kincaid-Chauncey, 556 F.3d 923, 937 (9th Cir. 2009) (noting

that a principle “assumed but not decided” in a previous opinion was now being explicitly held).

The Immigration Judge acted absolutely consistently with all governing Ninth Circuit and Board

precedent when she made her Fifth Amendment decision in John’s case.

That DHS has a duty to establish alienage by clear and convincing evidence and can

question John under oath does nothing to undermine John’s Fifth Amendment privilege, despite

DHS’s argument to the contrary. It is unthinkable that the regulations DHS cites can be properly

23 123-456-789

interpreted to trump John’s constitutional rights. See Alvarez-Garcia v. Ashcroft, 378 F.3d 1094,

1099 (9th Cir. 2004) (reviewing DHS regulations for constitutionality). Indeed, the very case

DHS cites to support its position contemplates that a respondent may refuse to testify to establish

his own deportability. See Matter of Tang, 13 I&N Dec. 691, 692 (BIA 1971). DHS was given

the opportunity to cross-examine John within the bounds of the Constitution, and it did so. That

was all that is required. That DHS failed to meet its burden does not allow it to re-write the

constitutional protections to which respondents like John are entitled. The Immigration Judge

properly allowed John to invoke his Fifth Amendment privilege against self-incrimination.

Conclusion

For DHS’s failure to establish John’s alienage in the five years his case was pending, the

Board should affirm the Immigration Judge’s order terminating these proceedings.

Dated: January 15, 2010 Respectfully Submitted, PUBLIC COUNSEL

By:___________________________ KRISTEN JACKSON Attorneys for Respondent John Doe

APPENDIX 10 Suppression/Termination Intake Questions

229

1

INTAKE QUESTIONS TO SCREEN FOR SUPPRESSION/TERMINATION ISSUES

Please note these questions are intended to help investigate a possible termination or suppression

strategy. Obviously, most children are not going to be able to answer a number of these questions. It is

helpful to explain that you are asking these questions to determine if immigration broke any of their

rules in how they treated the child. Be sure to ask these questions and respond to the answers using

the child interviewing skills outlined in Section IV.A.

How did immigration find/catch/arrest you?

What were you doing when immigration found/caught/arrested you?

Where were you when immigration found you? Walking in the desert?

Mountains? Town?

How many officers were there?

Were you scared? Why were you scared?

How were you transported by immigration?

Did they use handcuffs?

Where were you taken?

Where were you held?

What did the place you were held look like?

Who else was in the room/cell you were held in? Any adults or only children?

Only boys? Or only girls?

How was the temperature of the room? Were you ever held in a room where it

was painful because it was either very hot or very cold?

Could you sleep where you were held or were you forced to stay awake? When it

was time to sleep, did one of the officers make lots noise that made it impossible

to sleep?

Did you have a mattress?

Did you have a pillow?

Were you given food?

What was the food?

How frequently were you fed?

At any time from the time you were caught by immigration until you were released,

did you feel pain? What type of pain? Where did the pain come from? Who caused

the pain? Did you have any bruises or marks on you as a result?

If you were in pain, did you see a doctor? Did you tell anyone you were in pain? How

did they respond?

Did you stay at more than one place with immigration? How many places? (Go

through the above questions about where the child was held for each facility.)

Did you understand what was happening to you?

Did you feel like you had to answer the immigration officer’s questions?

When you were questioned by immigration officers who else was there?

2

Where were you questioned by officers?

When you were questioned by officers was the door open or closed? Were you free

to leave? Did you feel free to leave?

What did you think would happen if you didn’t answer the officer’s questions?

Did immigration make any promises about what would happen if you answered

the questions?

Did immigration make any threats about what would happen if you didn’t answer

the questions?

Did the officer speak Spanish? Fluently?

Did the officer use an interpreter? Did you understand the interpreter?

Did you get to make a phone call?

Do you remember being told about your rights?

Did you get to make a phone call?

Were you told you had a right to a lawyer?

Were you told you had the right to a hearing before a judge?

Were you told you could talk to your consul?

Do you remember any of the questions the officer asked you? What were they?

Do you remember any of your answers to the officer? What were they? Did you

tell them where you were from?

Were you asked to sign papers without understanding them? Can you read? Were

you able to read the papers you signed? Did someone read the papers you signed to

you in a language you understand?

Did you receive copies of the papers you signed? Right away or on your last day

with immigration? Do you still have those papers? Can I see those papers?

Do you remember what those papers were? (You can show a sample I-770 and NTA

to see if the child recognizes those documents)

What if any identity documents did you have on you? Birth certificate? Matrícula? DUI [documento único de identidad / El Salvador]?

Did you give any documents to immigration? If so, what documents?

How did you get to the person who you are staying with now? Did you take a plane?

Did the person you are staying with come get you?

Do you know if the person who you are living with received copies of your

immigration documents? If so, how? By mail? In person?

Did anything else happen during your time with immigration that you want to tell

me about? That seemed unfair or painful or seemed like immigration was behaving

badly?

IF INTERIOR ENFORCEMENT, did you give permission to anyone to share

your information with immigration?

APPENDIX 11 Sample Master Calendar Hearing Cheat Sheet

232

CHEAT  SHEET:  MASTER  CALENDAR  HEARING  

Before  the  Hearing:  

• Review  Court’s  A  file  and  Record  of  Proceeding  (if  this  is  not  the  first  hearing)  

• File  ORR  Records  Request  and  CBP/ICE/USCIS  FOIA  as  applicable  (do  not  include  alienage  on  requests)  

• Develop  suppression/termination  theories  and  strategies  with  your  client  through  a  series  of  meetings  

• Advise  client  and  caretaker  that  caretaker  should  not  attend  the  hearing    

• Prepare  client  to  not  answer  questions  in  court  about  alienage,  country  of  origin,  nationality  

At  the  Hearing:  

• Ask  for  Motion  to  Continue  for  attorney  preparation  time  if  you  are  not  ready  to  proceed    

• Holding  ICE  to  its  burden  of  proving  alienage:  

  -­‐-­‐Does  the  government  have  the  A  file?  If  not,  move  to  terminate  based  on  failure  to  sustain     burden  of  proving  alienage.  

  -­‐-­‐What  evidence  does  the  government  have  of  respondent’s  alienage?  If  none,  or  if  refusing  to     produce  the  evidence,  move  to  terminate.  

  -­‐-­‐Object  to  any  evidence  presented  in  open  court  as  untimely  and  request  time  to  review.  

  -­‐-­‐Move  the  judge  to  compel  ICE  to  produce  the  documents  that  allegedly  establish  alienage.  

• Request  that  IJ  require  ICE  to  prove  up  proper  NTA  service    

• Challenging  the  Notice  to  Appear:  

  -­‐-­‐Object  to  NTA  service  in  the  court  room.  This  does  not  cure  past  improper  service.    

  -­‐-­‐Do  not  concede  to  proper  service  and/or  enter  pleadings  until  you  have  time  to  analyze  the     issues  of  service,  inaccuracies,  and  deficiencies  of  the  NTA.  Request  time  to  brief  the  issues     related  to  the  NTA.    

  -­‐-­‐If  client  pleaded  previous  to  representation,  motion  to  set  aside  pleadings  and  request  time  to     brief  the  issues.  

• If  you  are  forced  to  proceed,  state  that  you  are  putting  ICE  to  its  burden  of  establishing  alienage,  and  deny  the  factual  allegations  and  charge  of  removability.    

• Identify  all  grounds  for  suppression/termination  and  state  you  will  file  a  Motion  to  Suppress/Terminate.  

• Ask  the  judge  to  set  a  deadline  for  ICE  counsel  to  submit  all  evidence  of  alienage.    

• Ask  for  a  briefing  schedule  and  an  evidentiary  hearing.  

• Move  the  IJ  to  compel  ICE’s  production  of  a  copy  of  the  A  file,  or  ask  for  a  briefing  schedule  that  accounts  for  the  return  of  your  FOIA  requests.  

APPENDIX 12 Evidentiary Objections Cheat Sheet

234

1

CHEAT SHEET: OBJECTIONS IN IMMIGRATION COURT1

Relevance and fundamental fairness are the only bars to admissibility of evidence in immigration court. These

provisions are anchored in the due process clause of the Fifth Amendment. Although not applicable in

immigration proceedings, the Federal Rules of Evidence (FRE) are based on principles of relevance and

fundamental fairness and can be used as a guide.

OBJECTIONS TO DOCUMENTARY EVIDENCE

Untimely Filing: If the government attempts to file documentary evidence in open court, object to the evidence as

untimely as it circumvents the respondent’s right to a reasonable opportunity to examine and object to the

evidence presented against her. 8 CFR § 1240.10(a)(4); ICPM Ch. 3, §§ 3.1(b) & (c). Argue that the document

should not be entered into evidence; or, if entered, that it should not be given weight. ICPM Ch. 3, § 3.1(d)(ii).

Relevance: Relevant means evidence having any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than it would be without the evidence. FRE Rule

401.

Completeness (goes to reliability/fundamental fairness): Object when government counsel shows a witness an

incomplete record or transcript of a prior proceeding. Incomplete documents are often unreliable. FRE Rule

611(a).

Authenticating or Identifying Documentary Evidence (goes to reliability/fundamental fairness): To satisfy the

requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient

to support a finding that the item is what the proponent claims it is. FRE Rule 901(a). Sample objection:

Authenticity/reliability/fundamental fairness, impossible to determine whether this document is what the TA

purports it to be because there is no date/signature/chain of custody/etc.

Right to Cross-­‐Examine Author of the Document (goes to reliability/fundamental fairness): Respondents have a

right to a reasonable opportunity to cross-­‐examine witnesses in immigration court. 8 C.F.R. §§ 1240.2(a),

1240.10(a)(4). When the government fails to produce a critical witness and attempts to rely instead on a document

authored by the witness, counsel should object to the document based on fundamental fairness, reliability, and

the right of confrontation contained in the due process clause of the Fifth Amendment.

OBJECTIONS TO QUESTIONS

Relevance: Relevant means evidence having any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than it would be without the evidence. FRE Rule

401.

Leading Question (goes to the fundamental fairness): A leading question contains or suggests the desired answer

to the witness. Leading questions are permissible on cross-­‐examination or if a witness is hostile. FRE Rule 611(c).

Counsel is Testifying/Argumentative (goes to fundamental fairness). See FRE Rule 611(a).

Compound Question (goes to reliability/fundamental fairness): When two questions are posed as one, a

witness’s response will be ambiguous and unreliable. See FRE Rule 611(a).

1

Thanks to Erich Straub and Matthew Shaftel of Shaftel Law for providing the basis of this Cheat Sheet.

2

Asked and Answered (goes to judicial efficiency): The same question should not be repeated because it wastes

time and places undue emphasis on a particular question or answer. See FRE Rule 611(a).

Narrative (goes to relevance): Allows a witness to inject inadmissible evidence into the proceeding. By requiring

attorneys to ask a series of questions which call for succinct answers, opposing counsel will have an opportunity to

object. FRE Rule 611(a).

Assumes Facts not in Evidence/Lack of Foundation: Question assumes facts that have not yet been established.

FRE Rule 611(a).

Prejudice, Confusion, Waste of Time, or Other Reasons (goes to reliability/fundamental fairness, judicial

efficiency): The court may exclude relevant evidence if its probative value is substantially outweighed by a danger

of one or more of the following: unfair prejudice, confusing the issues, undue delay, wasting time, or needlessly

presenting cumulative evidence. FRE Rule 403.

Personal Knowledge (goes to relevance and fundamental fairness): A witness may testify to a matter only if

evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. FRE

Rule 602.

Confusing / Vague / Ambiguous (goes to fundamental fairness): A question must be posed in a clear way so that

a witness can reasonably know what information the examiner is eliciting. FRE Rule 611(a).

Beyond the Scope of Direct / Cross / Redirect Examination (goes to fundamental fairness): The scope of

questioning is limited to the scope of the previous examination. FRE Rule 611(b).

Misstates Evidence / Misquotes Witness / Improper Characterization of Evidence (goes to fundamental

fairness): FRE Rule 611(a).

Cumulative (goes to fundamental fairness, prejudice, and efficiency): Counsel keeps presenting additional

evidence when a point has already been established. FRE Rules 403; 611(a).

Conclusory (goes to reliability/fundamental fairness): Object when a question calls for a conclusion the witness is

not qualified to make. A conclusion is a deduction drawn from a fact or series of facts. In general, witnesses should

testify only to facts (or inferences from facts). See FRE Rules 701 (Opinion Testimony by Lay Witnesses), 702

(Testimony by Expert Witnesses), 703 (Bases of an Expert’s Opinion Testimony).

Hearsay (goes to reliability/fundamental fairness): Hearsay is any out of court statement, including live testimony

by a witness of his/her own prior statement, presented for the truth of the matter asserted. FRE Rules 801-­‐807.

Challenge multiple levels of hearsay as particularly unreliable.

APPENDIX 13.A IJ Interim Decision on Interior Enforcement Motions to Suppress and Terminate

237

APPENDIX 13.B IJ Decision on NTA Service

246

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT PHILADELPHIA, PENNSYLVANIA

IN THE MATTER OF: ) IN REMOVAL PROCEEDINGS ) ) File No.: )

RESPONDENT ) Date: )

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“Act” or “INA”), as amended, in that you are an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General.

APPLICATION:

DHS’ Motion to Reconsider Termination

APPEARANCES

ON BEHALF OF RESPONDENT:

ON BEHALF OF THE GOVERNMENT: Assistant Chief Counsel DHS/ICE 900 Market Street, Suite 346 Philadelphia, PA 19107

THE COURT’S DECISION ON DHS’ MOTION TO RECONSIDER TERMINATION

I. Procedural History

Respondent is a 10-year-old native and citizen of . On March 22, 2013, the Department of Homeland Security (“DHS”) delivered1 a Notice to Appear (“NTA”) which alleges that (1) she is not a citizen or national of the United States; (2) that she is a native and citizen of ; (3) that she arrived in the United States at or near Hidalgo, Texas, on or about ; (4) that she was not then admitted or paroled after inspection by an Immigration Officer. Respondent’s NTA was filed May 28, 2013 with the Court. The Certificate of Service section on Respondent’s NTA where there should be a “Signature of Respondent if Personally Served,” the phrase “Served Upon Conservator” is written in with ink. Id.

Respondent appeared before the Court on , 2013 and , 2013.2 On the latter date, the Court terminated proceedings sua sponte after finding that service of Respondent’s NTA was not in compliance with 8 CFR § 103.8(b)(ii) and Matter of Amaya, 21 I&N Dec. 583 (BIA 1996). DHS filed a motion to reconsider termination on October 24, 2013 and attached Respondent’s Form I-213, dated March 22, 2013 in conjunction with its motion. Respondent filed an answer to DHS motion on November 4, 2013. For the reasons following, this Court denies DHS’ motion to reconsider termination. II. Issues Presented The sole issue under consideration in this motion is whether delivery of Respondent’s NTA to an unnamed “conservator” constitutes proper service pursuant to 8 CFR § 103.8(b)(ii)(2013). III. Discussion

Under 8 C.F.R. § 103.8(c)(2)(ii) (2013), service of notice for juveniles must be served upon the minor and upon “the person with whom the minor resides,” and whenever possible “the near relative, guardian, committee, or friend” of a minor under the age of 14.” The Board of Immigration Appeals (“the Board”) has made clear that the purpose of this regulation is to serve “the person or persons who are most likely to be responsible for ensuring that an alien appears before the immigration court at the scheduled time.” Matter of Amaya, 21 I&N Dec. 583 (BIA 1996); see also Matter of Gomez-Gomez, 23 I&N Dec. 522 (BIA 2002). The Government argues that delivering an NTA to a “conservator” is consistent with Matter of Amaya and § 103.8(c)(2)(ii) because the regulation should be construed broadly to allow for service upon a “conservator,” generally defined as a “guardian, protector, or preserver.” See Black’s Law Dictionary. Additionally, the Government argues that since the Office of Refugee Resettlement (“ORR”) has sole legal custody over unaccompanied minors,

1 The Court uses the term “delivered” to avoid the legal conclusion that the NTA was actually “served” here since the principal question is whether the NTA that DHS delivered to Respondent’s “conservator” constituted proper service. 2 Respondent appeared in concurrent proceedings on June 19 with another unaccompanied minor, A who DHS alleged was Respondent’s companion when she entered the United States. The same issue regarding service arose in both cases; the other minor’s case was also terminated on September 26, 2013 due to improper service.

delivery to a “conservator” simply reflects this relationship amidst changes in the minor’s location. See Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) Pub. L. No. 110-457, 122 Stat. 5044 (2008); 6 U.S.C. § 279(b)(4).

The Court finds these arguments unpersuasive. Defining a term to demonstrate what a “conservator” is fails to establish who the conservator is, as required by § 103.8(c)(2)(ii). As the Board recently stated, “the DHS should demonstrate to the Immigration Court the connection between the Respondent and the person who is served.” Matter of E-S-I-, 26 I&N Dec. 136, 143 (BIA 2013). Here, DHS failed to meet its burden under Matter of E-S-I to establish, in a factual sense, who the NTA was delivered to and what their role was in relation to Respondent. Id. Alternatively, DHS argues that even if there was improper service, there is no prejudice to Respondent, citing a Second Circuit Court of Appeals case, Nolasco v. Holder, 637 F.3d 159, 164 (2d Cir. 2011), which held that improper service does not violate due process. This argument is not germane here. DHS failed to comply with the regulatory structure outlined in § 103.8(c)(2)(ii) when delivering the NTA. See Matter of E-S-I-, 26 I&N Dec. at 140-43.3 Such a failure is sufficient to support the Court’s finding of inadequacy of service; the Court need not reach whether such an error is a violation of due process. The Court notes that according to the I-213 that DHS filed in the record, when Respondent was apprehended, she admitted that her purpose for coming to the United States was to reside with her aunt who lives in [city/state]. See DHS Motion to Reconsider Termination, Tab 1 at 2. The I-213 lists Respondent’s aunt’s name, her address and her phone number. Id. at 3. Moreover, the last line of Respondent’s I-213 states: “NOTE: Subject made contact with her Aunt at telephone number at 10:55 P.M. on March 21, 2013.” Id. at 4.

The Court finds it probative that contact was made with Respondent’s aunt the day before Respondent’s I-213 was drafted on March 22, 2013, the same day DHS delivered Respondent’s NTA to Respondent and the “conservator.” Therefore, DHS’ failure to perform proper service is inexcusable, particularly since contact information for a guardian or “near relative” was available. Had Respondent’s aunt been found not to be an appropriate guardian under the regulations, it would still be DHS’ burden to serve a responsible party, even if that required listing the name and title of the head of a juvenile detention center or the appropriate ORR contractor with custody over the minor. Matter of E-S-I-, 26 I&N Dec. at 141. IV. Conclusion 3 Matter of E-S-I- addresses two regulations governing mentally incompetent aliens placed into removal proceedings, § 103.8(c)(2)(i) and § 103.8(c)(2)(ii), the second of which also addresses service on minors. The Board’s discussion of this second provision is clearly important in this matter. However, the Board’s analysis in E-S-I- also cites directly to Matter of Amaya, Matter of Gomez-Gomez, and Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002) which address service on minors, reflecting how closely intertwined the regulatory interpretations of provisions governing mentally incompetent aliens and minor aliens has become. This cross-fertilization of ideas underpinning the rationale in Amaya further supports the Court’s finding that service upon a “conservator” is insufficient.

The Court’s finding that delivery of Respondent’s NTA to a “conservator,” as set forth on the certificate of service of the NTA, constituted improper service upon Respondent pursuant to 8 CFR § 103.8(b)(ii) and Matter of E-S-I- demands that the Court deny DHS’ motion to reconsider termination of the removal proceedings in the matter of Respondent.4 Accordingly, the following order shall be entered:

ORDER

ORDER: IT IS HEREBY ORDERED that DHS’ motion to reconsider termination be DENIED.

ORDER: IT IS HEREBY ORDERED that the removal proceedings in the matter of

Respondent remain terminated without prejudice.

Date Steven A. Morley Immigration Judge Philadelphia, Pennsylvania

4 Nothing in this decision precludes DHS from curing its’ improper service on Respondent by re-issuing Respondent’s NTA in accord with 8 CFR § 103.8(b)(ii) and Matter of E-S-I-.

APPENDIX 13.C IJ Decision on NTA Service

251

UNITED STATES DEPARTMENT OF JUSTICEEXECUTIVE OFFICE FOR IMMIGRA nON REVIEW

UNITED STATES IMMIGRATION COURTHARTFORD, CONNECTICUT

File:

In the Matter of

II .-)

)

)

)

)

)

IN REMOVALPROCEEDINGS

Respondents

CHARGE: Section 2l2(a)(6)(A)(i) of the Immigration and Nationality Act ("INA" or"Act"): Alien Present In the United States Without Being Admitted Or Paroled

APPLICA TION: Motion to Tenninate

ON BEHALF OF RESPONDENT:J ..nii IMcCarter and English, LLP

ON BEHALF OF SERVICE:Robert K. Bingham, Special CounselTrial Attorney Unit-DHS450 Main Street, Suite # 483Hartford, Connecticut 06103

DECISION OF THE IMMIGRATION JUDGE

I PROCEDURAL HISTORY

On June 29,2005, the Department of Homeland Security ("DHS") served a Notice to Appear("NT A") on the minor respondents' conservator while the respondents were being held at theInternational Educational Services facility at Los Fresnos, Texas, Respondent's Exhibit C. The NTAalleges that the respondents are natives and citizens of Honduras who arrived in the United States at ornear Roma, Texas on or about June 29, 2005 and were not admitted or paroled after inspection by animmigration ofrcer. Id, Based on these allegations, the NT A charges that they are inadmissible under

1

SecÙon 212(a)(6)(A)(i) of the Act as an aliens present in the United States without being admitted orparoled. ld,

II RESPONDENT'S MOTION TO TERMINA TE

On November 28, 2006, the respondents orally moved to terminate removal proceedingsagainst him 011 the ground that the NT A was not served on their parents, On November 30, 2006, theDHS tìled a Reply to this motion, in which it asserts that it had no obligation to serve the NT A on therespondent's parents because at the time of service, the respondents were "in the custody of a welfareagency," Reply to Motion to Tenninate at 1. Moreover, the DHS contends that the regulationsrequiring it to serve a minor respondent's NTA on a "near relative" whenever possible "do not governEOlR." rd. Finally, the DHS argues that the respondents' proceedings should not be tennÌnated basedon improper service because the respondents acknowledged service of the NT A in their writtenpleadings and were served through counsel with an additional copy of the NTA on November 28,2006. rd.

On December 15, 2006, the respondents fied a brief in support of the motion to terminateproceedings, along with affdavits executed by themselves, _ father, and _ mother. ..

asserts that when he was apprehended as he attempted to cross into the United States, he gave animmigration offcer his father's phone number and spoke to his father by phone. Respondent's Exhibit

11, The respondent's father states that he gave his address to this immigration officer during the phonecalL. Respondent's Exhibit B, _and her mother provided a similar affdavit. The respondentsargue that the DHS was obligated to serve the NT A on a parent even though it had also served theNTA on the conservator because the immigration offcer was aware that the parent resided in theUnited States and knew the parent's address. They claim that the later receipt of actual notice of thecharges "does not confer jurisdiction." on the Court absent DHS "'compliance with prescribed'".,, .conditions of service. ", Respondent" Brief at 5, citing Buggs v. Ehmschwender, 968 F,2d 1544, 1548

(2d'Cir. J 992),

III ANALYSIS~\

The respondents' motion to tern1inate wil be granted because the DHS did not follow itsregulations and Board precedent regarding service of NT As on unaccompanied minors, and this errorrendered ineffective the respondents' later receipt of actual notice of the charges against them.

The DHS may initiate removal proceedings against unaccompanied minors under the age offourteen only by service of an NTA "upon the person with whom .., the minor resides; wheneverpossible, service shall also be made on the near relative," 8 C.F.R. § J03.5a(c)(iì) (2006). Thisregulation ensures that the NTA is served on "the person or persons who are most likely to beresponsible for ensuring that an alien appears before the Immigration Court at the scheduled time,"

2

Matter of Amaya~Castro, 21 I&N Dec, 583, 585 (BIA 1996).

Though it is true that regulations regarding the service of charging documents do not govem theExecutive Office for Immigration Review ("EOIR"), Immigration Courts may review the suffciency ofthe DHS' service of NT As on unaccompanied minors, The Board ofImmigration Appeals has oftenruled on the adequacy of the DHS' efforts to comply with its regulations governing the service ofcharging documents. See,~, Matter of Amaya-Castro, Matter of Me; ¡a-Andino, In Matter ofMejia-Andino, the Board affrmed an IJ's termination of removal proceedings when it deemed serviceinadequate under Section 103.Sa, Although this regulation is grouped with portions of the Code thatconcem DHS activity, sufficiency of service under Section 103.5a has been reviewed by EOIRcomponent bodies,

The respondents were not properly served with the NTA because the DHS made no attempt toserve the charging document on their parent. Because "parents have ultimate responsibility in casesinvolving minor respondents," service upon parents is required whenever possible if "it appears that aminor child wíJ be residing with (his orJ her parents in this country," regardless of whether the minorresides with another adult at the time of service, Matter of Meiia-Andino, 23 I&N Dec. 533, 536(BIA 2002) (citing Gonzalez v. Reno, 212 F.3d 1338, 1349-50 (l iCh Cir. 2000)), In Matter ofMeiia-Andino, a seven-year-old arriving alien was not properly served with an NT A wl¡en the NT A was'Jj~' _ ~ _' ..'served on her uncle, with whom she was found, but not on her fathèr, who resided in the United Stàtes.23 I&N at 534-36, In Matter of Amaya-Castro, service of a charging document on the director of thefacilitywhere a minor alien was detained was deemed suffcient to comply with the regulations becausethe alien was actually present aMhe Úicility, regardless of whether he intended to stay there, Matter ofAmaya-Castro at 584, citing INA § iÖi(a)(33). However, in that case, the alien did not allege that anear relative was present in the United States. In this case, as in Matter of Amaya-Castro, therespondent's NT A was served on a responsible adult at a facilty where he resided. However, like thealien in Matter of Meiia-Andino, the respondents in this case told the immigration officer whoapprehended them that a parent resided in the United States, and the officer then obtained the parent'sphone number and address. This address made service of the NT A on a near relative possible, As inMatter ofMeiia-Andino, the DHS in this case became obligated to serve the NTA on the respondents'parent when the respondents gave the immigration officer sufficiently specific information to make suchservice possible. Service of the NTA on the respondent's conservator thus became necessary, butinsuffcient,

The respondents' later receipt of actual notice of the charges against them does 110t cure theDHS' initial faulty service of the NTA. When a regulation protects "a fundamental right derived fromthe Constitution or a federal statute, and the INS fails to adhere to it, the challenged deportationproceeding is invalid and a remand to the agency is required." Waldron v, INS, 17 F,3d 511, 518 (2dCir. 1993), Courts have not specifically characterized notice of charges as a "fundamental right."Moreover, the respondent's reliance on the holding in Buggs v, Ehmschwender is misplaced becausethat case construed the notice requirements of the Federal Rules of Civil Procedure, not those of the

3

IN'A or its associated regulations. However, in Matter of Meiía-Andino, the Board ruled thattennination was the proper remedy for improper service of an NTA.on a minor alien, even when thealien later received actual notice of the charges against her after she was ordered removed in absentia,23 I&N at 537, Here, the respondentSTeceived actual notice of the charges against them when theparent was served with his NTA at the November 28,2006 hearing, However, under Matter ofMeiia-Andino, this actual notice is ineffective, so proceedings against them must be terminated.

iv ORDER

Based on the foregoing, the following order shall enter:

IT is HEREBY ORDERED that the respondents' motion to terminate removal proceedings be,

Jd=e;:~:r:::;ED ..~Date Miß L W. ST USUnited States Immigration Judge

4

APPENDIX 14 Sample Brief Regarding Objections to Evidence Not Submitted by the Court’s Filing Deadline

256

KRISTEN JACKSON (Bar No. 226255) PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA 90005 Telephone (213) 385-2977, ext. 157 Facsimile (213) 385-9089 Attorneys for Respondent John Doe

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT

LOS ANGELES, CALIFORNIA

In the Matter of: ) )

) File No. A 123 456 789 )

John Doe, ) ) ) In Removal Proceedings ) ___________________________________ ) Immigration Judge Lourdes A. Rodriguez de Jongh Hearing: August 10, 2009 at 1:00 PM

RESPONDENT’S OBJECTIONS TO EVIDENCE NOT SUBMITTED BY THE COURT’S FILING DEADLINE

2

Respondent John Doe, through pro bono counsel, files these Objections to Evidence Not

Submitted by the Court’s Filing Deadline. The evidence DHS now submits on the day of John’s

Merits Hearing is untimely filed and thus should not be considered. In the event that DHS moves

to admit the document or documents into evidence, John respectfully requests that the Court

deny that request and exclude the evidence.

The Court should not admit any evidence DHS now attempts to put into the record

because DHS has failed to comply with the reasonable filing deadline for materials to be

considered at the Merits Hearing. “If an application or document is not filed within the time set

by the Immigration Judge, the opportunity to file that application or document shall be deemed

waived.” 8 C.F.R. § 1003.31(c) (2009). The BIA has upheld this regulation as it applies to

respondents’ failures to timely file applications for relief. Matter of Villarreal-Zuniga, 23 I & N

Dec. 886, 892 (BIA 2006); Matter of Shanu, 23 I & N Dec. 754, 764-65 (BIA 2005). 8 C.F.R. §

1003.31(c) clearly applies to both parties, as it refers to any “application or document,” and no

reason exists to hold DHS to a different standard – particularly because here DHS bears the

burden of proof, as did the respondents in Villarreal-Zuniga and Shanu.

In this case, parties are operating under the Court’s order that “[b]oth parties must submit

any doc[ument]s for court review no later than 30 days before [the August 10, 2009] hearing.”1

See Hearing Notice (dated 02/10/09). Even without this filing deadline set by the Court, the

Immigration Court Practice Manual (“ICPM”) requires that both parties submit any documents to

be considered 15 days in advance of the August 10, 2009 Merits Hearing – that is, by July 27,

2009. ICPM § 3.1(b)(ii)(A). DHS did not submit this evidence by the 30-day

1 Because the 30-day deadline fell on Saturday, July 11, 2009, the actual filing deadline was July 13, 2009 – a deadline that John met. ICPM § 3.1(c)(ii)(B).

3

deadline for materials regarding alienage, much less by the 15-day deadline; instead, DHS

simply brought the evidence to the hearing. This is plainly in violation of the ICPM, which goes

on to state that consequences of untimely filings include “if an exhibit is untimely, it is not

entered into evidence or it is given less weight.” ICPM § 3.1(d)(ii).

An exception exists if DHS “explain[s] the reason for the late filing and show[s] good

cause for acceptance of the filing” through a motion to accept the untimely filing. ICPM §

3.1(d)(iii). This DHS has failed to do. Any reasons that DHS may have for the late filing are

weak, at best. Unless the documents DHS attempts to submit were actually created and dated

later than July 13, 2009, there is simply no justifiable reason that they could not have been

discovered and presented by the filing deadline – particularly given that this case has been

pending for nearly five years. Further, no good cause exists to allow documents into evidence

that John has not been given an opportunity to review and for which to prepare objections.

Indeed, at the July 1, 2008 Master Calendar Hearing when the Court asked if the 07/11/05 I-213

“was it” in terms of evidence of alienage, DHS answered yes. DHS appears to have made a

strategic decision not to submit additional evidence in advance of the July 13, 2009 filing

deadline, and it should be held to that decision.

Should DHS argue that this filing deadline does not bind it because the ICPM’s deadlines

“do[] not apply to exhibits or witnesses offered solely to rebut and/or impeach,” ICPM §

3.1(b)(ii)(A), the Court should reject this argument. First, the Court’s own filing deadline was

clear – “any” documents to be considered must be filed 30 days in advance of the Merits

Hearing. Hearing Notice (dated 02/10/09). There was no exception carved out for impeachment

or rebuttal evidence. This is understandable, given the second reason why this argument should

fail: At this stage, DHS is being put to its burden to establish its own case – that is, that John is

4

an “alien.” DHS must come forward and affirmatively meets its burden. Implicit in using

“exhibits . . . solely to . . . impeach” is the notion that these documents are not being used to

establish the truth of their contents, but to undermine testimony given by highlighting

inconsistencies or incongruities. See Lopez-Moreno v. INS, No. 97-70541, 1999 U.S. App.

LEXIS 5970 (9th Cir. Dec. 9, 1998) (unpublished) (asylum officer’s notes were not introduced

“for the truth of the matter asserted or as substantive evidence” but instead were used to impeach

the respondent’s credibility). Similarly, by their nature, “exhibits [used] solely to rebut” are

relevant only when a particular fact or presumption has already been established. See, e.g.,

Matter of Hines, 24 I. & N. Dec. 544 (BIA 2008) (“evidence of foreign birth gives rise to a

rebuttable presumption of alienage, shifting the burden to the respondent to come forward with

evidence to substantiate his citizenship claim” (emphasis added)); Matter of S- K, 23 I. & N. Dec.

936, 941 (BIA 2006) (noting that the respondent failed to produce evidence to rebut the IJ’s

conclusion that the CNF is a terrorist organization). Thus DHS cannot rely upon this provision to

wedge in additional evidence of alienage, since DHS can meet its burden only through “clear,

unequivocal and convincing evidence” – that is, evidence that inherently must be relied upon for

its truth and must affirmatively establish the important jurisdictional fact of alienage. This

limited carve-out for impeachment or rebuttal evidence simply does not apply here.

* * * * *

For the reasons outlined above, John respectfully requests that the Court sustain his

objections and not allow the document or documents submitted on the day of John’s Merits

Hearing into evidence if DHS moves to have them admitted. If the Court does not bar the

material, then John requests that the Court grant John a continuance to review the new evidence

5

and prepare any written objections that may be warranted.

Dated: August 10, 2009 Respectfully Submitted, PUBLIC COUNSEL

By:___________________________ KRISTEN JACKSON Attorneys for Respondent John Doe

APPENDIX 15 Sample Direct and Cross Examinations

262

1

DIRECT ON SUPPRESSION (INTERIOR ENFORCEMENT)

When your juvenile case was opened, do you remember anyone asking you where you were born?

Do you know if your juvenile court records showed where you were born?

Did any immigration officer interview you before a detainer was placed on you?

Did you see the detainer? When and how?

What did the detainer say?

Did you provide immigration with any of the information on the detainer?

Do you know what information was given to immigration about you, when or how

that information was turned over, or who gave immigration the information on the

detainer?

Do you remember the day you were arrested and handed over to immigration?

Can you tell us what you remember about that day?

How old were you on this day?

Where were you?

With whom?

What were you doing there?

What happened?

Who arrested you?

How did you know it was the police?

What did the officer say to you?

What did he say to your mom?

Did he have an arrest warrant?

Did you see it?

Was there a signature on it?

Was your name on it?

How many officers or agents were there?

Did they tell you that you could not leave?

Did they block your ability to leave?

How did you know that you could not leave?

Did you ask to leave?

Did they display their weapons?

Did they display their power and authority?

How did they do this?

How did you feel?

Where did they take you?

How long were you in the city jail?

Were you with other adults?

Where were you exactly within the city jail?

When did immigration arrive to the city jail? How many?

What did they say? Do you know the names of the agents?

At what time did this happen?

When did you see your mom next?

Where did immigration take you?

What happened while you were there?

What did he say?

2

What did he want you to sign?

What did you say?

Did you ask for your mom?

What did they say?

How long did this interview last?

Did you ask for your attorney?

How many times?

What did the officer say when you asked to speak to your attorney?

Did he threaten you?

Did he ask you where you were from?

Did you answer?

What happened next?

And where did you stay that night?

With other adults?

Was there a female guard?

What happened in the morning?

How long was this second interview?

What did they ask you?

What did you say?

Did they say anything about your mom?

Did they let you call your step-father?

How did you feel during this interview?

At any moment, did immigration give you a copy of the paperwork you signed?

Do you know what you signed?

At this time in your life, did you speak English?

Did you read English?

Was the paperwork in English?

Did someone interpret the paperwork?

Did they give you a copy of the paperwork?

Do you remember seeing a Form I-770?

Did you sign this?

Did you receive a copy of it?

During the time you were in custody, did they give you food?

Where did you sleep that second night?

How did you feel?

What happened in the morning?

How did you feel during this third interview?

Where were you?

Did this person speak Spanish?

How many people were in the interview?

What did they tell you?

Did you ever receive a copy of the forms that you were supposed to sign?

Did you understand what was happening?

Then what happened?

Where did they take you?

What day was this?

3

At any point, were you allowed to make a phone call?

Did you ask to speak with your attorney?

Have you seen this document before? (I-213)

Have you reviewed this document?

Did you provide the information contained on this form?

Do you know where the information on this document came from?

CROSS EXAMINATION OF DHS OFFICER ON I-213 CREATION

Isn’t it true that the information on this I-213 did not come from CHILD?

Isn’t it true that you did not interview CHILD to gather the information for this I-213?

This information must have been from someone else, wasn’t it?

You didn’t speak to anyone else regarding these alleged facts, did you?

You didn’t speak to anyone with personal knowledge of CHILD’s place of birth to

gather or verify the information, did you?

You clearly did not review this form to look for errors, did you?

You did not catch that CHILD’s age was incorrect, did you?

You did not catch that CHILD’s date of entry was incorrect, did you?

You did not catch that CHILD’s mother’s name was incorrect, did you?

Isn’t it true that I-213s are normally created soon after information is gathered?

This I-213 was not created until nine months after the “date of action,” correct?

You were not involved in that “date of action,” correct?

Are you aware that the DHS’s Office of Inspector General notes that an I-213 must be completed initially after a child is apprehended?

Wouldn’t you agree that an I-213 created right after information gathering would

be more accurate than one created months and months later?

Don’t you agree that this I-213 lacks detail?

Are you familiar with the Juvenile Protocol Manual created by the Office of Detention and Removal?

Are you aware that it requires officers to obtain as much detailed

biographical information about a child as possible?

Are you aware that it lays out 12 topics to be covered above and beyond what is on the I-213?

You did not do that here, did you?

You have not received special training on working with juveniles, have you?

APPENDIX 16 Sample Motion for a Stay of Proceedings to Allow for an Interlocutory Appeal Regarding

Alienage

266

KRISTEN JACKSON (Bar No. 226255) PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA 90005 Telephone (213) 385-2977, ext. 157 Facsimile (213) 385-9089 Attorneys for Respondent John Doe

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT

LOS ANGELES, CALIFORNIA

In the Matter of: ) )

) File No. A 123 456 789 )

John Doe, ) ) ) In Removal Proceedings ) ___________________________________ ) Immigration Judge Lourdes A. Rodriguez de Jongh Hearing: August 10, 2009 at 1:00 PM

RESPONDENT’S MOTION FOR A STAY OF PROCEEDINGS TO ALLOW FOR AN INTERLOCUTORY APPEAL REGARDING ALIENAGE

2

Respondent John Doe, through pro bono counsel, files this Motion for a Stay of

Proceedings to Allow for an Interlocutory Appeal Regarding Alienage. If the Court finds that

DHS has established John’s alienage, John respectfully requests that he be given an opportunity

for the Board of Immigration Appeals to review this finding before his case proceeds any further.

I. The Issue of John’s Alienage Is Appropriate for Interlocutory Review. Whether DHS has established John’s alienage by “clear, unequivocal and convincing

evidence” is a question prime for BIA interlocutory review. See Hernandez-Guadarrama v.

Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005) (citing Woodby v. INS, 385 U.S. 276, 286 (1966))

(discussing standard for establishing alienage). It involves both “important jurisdictional

questions regarding the administration of the immigration laws” and “recurring questions in the

handling of cases by Immigration Judges.” See Board of Immigration Appeals Practice Manual,

Chapter 4.14(c) (updated Oct. 2008); see also 8 C.F.R. § 1003.1(b)(3) (2009) (the BIA has

jurisdiction to review “[d]ecisions of Immigration Judges in removal proceedings,” not simply

final orders of removal).

Nothing could be more fundamental than an appeal regarding whether DHS has

established alienage – since alienage triggers EOIR’s jurisdiction. See INA § 240(a)(1) (2009)

(“An immigration judge shall conduct proceedings for deciding the inadmissibility or

deportability of an alien.” (emphasis added)); see also Murphy v. INS, 54 F.3d 605, 609 (9th Cir.

1995). If DHS fails to prove alienage, removal proceedings must be terminated. See id. Thus a

finding of alienage goes straight to the core of the “jurisdictional question.”

In addition, this appeal taps into a recurring question. The BIA will likely want to review

John’s proceedings at this point not only to ensure the correct result in John’s case, but also to

address a step that occurs in every removal proceeding – the finding regarding alienage. As more

3

and more children enter into removal proceedings, it is vital that Immigration Judges be given

guidance on what types of evidence and admissions can be used to establish the alienage of

unaccompanied juveniles turned over to DHS. This is clearly a “recurring question” of

importance. Matter of M-D-, 24 I&N Dec. 138, 139 (BIA 2007). Interlocutory review will aid

John, other unaccompanied minors and the Immigration Courts themselves.

Indeed, the BIA granted an interlocutory appeal in a case very similar to this one. In

Matter of Guevara, 20 I&N Dec. 238 (1990, 1991), the BIA conducted an interlocutory review

of an Immigration Judge’s decision that a respondent’s silence in the face of a grant of immunity

constituted evidence of his alienage. The BIA recognized the recurring nature of this issue and

that forcing the respondent to proceed further without review would create “possible prejudice to

the constitutional rights of the respondent.” Id. at 241. The BIA reviewed the case, reversed the

Immigration Judge’s decision, and terminated the proceedings. Id. at 245.

II. Seeking Interlocutory Review Without a Stay in these Proceedings Would Render that Review Meaningless & Would Prejudice John.

In order for John to present his interlocutory appeal to the BIA, he needs a stay of his

removal proceedings. The BIA has recognized as much in its own ability to stay proceedings

pending its decisions on interlocutory appeals. See Matter of K-, 20 I&N Dec. 418, 419 (BIA

1991). If John is denied a stay, his interlocutory appeal would be rendered meaningless. If he

refused to pursue his case any further to preserve his privilege against self-incrimination and his

ability to appeal an erroneous alienage finding, he would be forfeiting his ability to access any

available immigration relief and his interlocutory and regular appeals would merge into one. If

John decided to seek relief from removal, he would necessarily be conceding alienage – which

he is not doing in his proceedings or through this statement – and thus incriminating himself and

likely forfeiting his ability to appeal the Court’s alienage finding. See Guevara, 20 I&N Dec. at

4

240-41 (recognizing the “unfair choice of either waiving [the respondent’s] privilege against

self-incrimination for criminal purposes in order to apply for relief, or remaining silent and being

ordered deported, in spite of eligibility for such relief”). This would clearly prejudice John. It

would essentially take DHS’s burden away and place the onus on John to proceed with his case

or face a removal order no matter how unwarranted the alienage finding might be.

* * * * *

Staying these proceedings to allow for an interlocutory appeal would aid both John and

the Court, as it would make clear whether removal proceedings should go any further than they

have now. For the reasons outlined above, John respectfully requests that the Court stay these

proceedings pending interlocutory review by the BIA.

Dated: August 10, 2009 Respectfully Submitted, PUBLIC COUNSEL

By:___________________________ KRISTEN JACKSON Attorneys for Respondent John Doe

APPENDIX 17 Sample Motion to Reopen to Rescind an In Absentia Order of Removal

271

Sara Van Hofwegen (SBN 266985) PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA 90005 Telephone (213) 385-2977, ext. 212 svan@publiccounsel.org Pro Bono Counsel for Respondent

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT

LOS ANGELES, CALIFORNIA

____________________________________ ) In the Matter of: ) )

) File No. A 123-456-789 Jose Lopez ) ) ) In Removal Proceedings ) ____________________________________)

Immigration Judge A. Jones Next Hearing: None Scheduled

RESPONDENT’S MOTION TO REOPEN TO RESCIND IN ABSENTIA ORDER OF REMOVAL

   

1

Thirteen-year-old Respondent Jose Lopez, through undersigned pro bono counsel,

respectfully requests that this Court reopen his removal proceedings and rescind his in absentia

order of removal. Jose’s in absentia order should be rescinded because the Department of

Homeland Security (“DHS”) failed to properly serve Jose’s aunt with Jose’s Notice to Appear

(“NTA”) and the Executive Office for Immigration Review (“EOIR”) similarly failed to provide

proper notice of Jose’s July 20, 2014, removal hearing. Moreover, exceptional circumstances

prevented Jose from attending his removal hearing.

I. PROCEDURAL HISTORY

On about March 10, 2014, DHS detained thirteen-year-old Jose and transferred him to the

custody of the Office of Refugee Resettlement (“ORR”). See NTA of Jose Lopez (attached at

Tab A). According to the NTA’s certificate of service, DHS personally served the NTA on Jose

on March 17, 2014, while he was in ORR custody. Id. at 2. Jose remembers receiving this

document while in ORR custody, but he did not understand it. See Declaration of Jose Lopez ¶ 3

(“Lopez Decl.”) (attached at Tab B). On about April 2, 2014, ORR released Jose into the

custody of his aunt, Maria Garcia. See ORR Verification of Release Form (attached at Tab C).

Immediately before doing so, an ORR employee gave Jose a yellow envelope containing several

documents. See Lopez Decl. ¶ 4. Jose did not understand the content of these documents either.

Id. DHS never served Ms. Garcia with the NTA. See Declaration of Maria Garcia ¶ 4 (“Garcia

Decl.”) (attached at Tab D).

According to the EOIR record of proceedings, on or about June 4, 2014, EOIR sent Jose

a Notice of Hearing, scheduling him for a removal hearing before this Court on July 20, 2014.

The Notice of Hearing was addressed directly to Jose; EOIR did not send a notice of the hearing

to Ms. Garcia. See June 4, 2014 Notice of Hearing (attached at Tab E). On July 20, 2014, when

   

2

Jose failed to appear at his removal hearing, this Court ordered him removed from the United

States in absentia.

II. ARGUMENT

A motion to reopen to rescind an in absentia removal order may be granted if the

immigrant did not receive proper notice or if the immigrant’s failure to appear was the result of

exceptional circumstances. See INA § 240(b)(5)(C).

A. The Government Failed to Provide Proper Notice

In order to provide the immigrant with adequate notice, DHS must first serve the

immigrant with a valid NTA, which informs the immigrant of the obligation to attend all removal

hearings and to provide updated addresses to the government. See Matter of G-Y-R-, 23 I&N

Dec 181, 185, 189-190 (BIA 2001); see also Matter of Anyelo, 25 I&N Dec. 337, 339 (BIA

2010). The NTA must be either personally served on the immigrant or served by mail, provided

the immigrant actually receives or can be charged with receiving the mailing. See INA §

239(a)(1); G-Y-R-, 23 I&N Dec. at 189-190. An immigrant who has not been properly served

with the NTA, and thus notified of the obligation to attend all hearings, cannot be held

responsible for failure to attend a removal hearing. G-Y-R-, 23 I&N Dec. at 189-190. If the

immigrant is not properly served with the NTA, the immigrant is entitled to recission of the in

absentia order due to lack of notice. See INA § 240(b)(5)(C)(ii) (referencing INA § 239(a)(1)).

Once an immigrant has been properly served with the NTA, the immigrant must also be

provided written notice of hearings before the immigration court. See INA § 239(a)(2). Service

can be achieved in person or by mail to the last address provided by the immigrant. Id.; see also

INA § 239(c). If the immigrant fails to attend a removal hearing because the immigrant was not

provided proper notice of the hearing, the immigrant may have the resulting in absentia removal

   

3

order rescinded. See INA § 240b(b)(5)(C)(ii) (referencing INA § 239(a)(2)); see also De Jesus

Vasquez-Escovar v. Holder, 768 F.3d 1000, 1006 (9th Cir. 2014) (reopening proceedings where

the notice of hearing was sent to the wrong address).

Moreover, federal law clearly provides for heightened notice requirements for children.

See, e.g., 8 C.F.R. § 103.8(c)(2)(ii); Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1163 (9th Cir.

2004). If the immigrant is a child under the age of 14, by regulation DHS must serve the person

with whom the child “resides,” and “whenever possible . . . on the near relative, guardian,

committee, or friend.” 8 C.F.R. § 103.8(c)(2)(ii); see also Matter of Mejia-Andino, 23 I&N Dec.

533, 536 (affirming the immigration judge’s decision to terminate proceedings when the parents

of a seven-year-old respondent were not served with the NTA). In the Ninth Circuit, all children

under the age of 18 are protected. In their cases, government must serve the person to whom the

child is released from federal custody. See Flores-Chavez, 362 F.3d 1150 at 1163 (citing

regulation now at 8 C.F.R. § 236.3). This heightened notice requirement reflects the special

consideration that children in removal proceedings are due. “Juveniles are presumed unable to

appear at immigration proceedings without the assistance of an adult,” and, therefore “a legally

responsible adult must be charged with ensuring the juvenile’s appearance at the hearing.” Id. at

1157. This adult must be given the NTA—and, by extension, subsequent hearing notices—in

order to help the child attend future hearings, and an absentia order must be rescinded where the

adult was not served properly. See id. at 1157; see also id. at 1153 (referencing improper service

of both the Order to Show Cause and the Notice of Hearing).

Thirteen-year-old Jose is entitled to have his removal proceedings reopened and his in

absentia order rescinded because the government did not provide adequate notice. The

government failed to serve Jose’s aunt— the person to whom Jose was released from federal

   

4

custody—with Jose’s NTA and likewise did not serve Jose’s aunt with the Notice of Hearing.

See Tab A at 2; Garcia Decl. ¶ 4. Because Jose’s aunt was not served with the NTA, Jose and his

aunt were not put on proper notice of Jose’s obligation to attend all removal hearings and to

update his address with the government. Similarly, Jose’s aunt did not receive proper notice of

Jose’s July 20, 2014, removal hearing, and was therefore did not meet her responsibility to

ensure that Jose attended his removal hearings. See Garcia Decl. ¶ 4. Federal law clearly

recognizes that, at just thirteen years old, Jose is unable to understand and navigate his removal

proceedings, and “a responsible adult must be charged” with insuring Jose’s attendance at the

proceedings. Flores-Chavez, 362 F.3d at 1157. The government failed to comply with the

requirements for proper notice for children, and as a result this Motion should be granted.

B. Exceptional Circumstances Prevented Jose From Attending His Removal Hearing

Moreover, Jose’s removal proceedings should be reopened and his removal order

rescinded because exceptional circumstances prevented Jose from attending his hearing. Jose is

just thirteen years old, far too young to navigate removal proceedings on his own. Id. at 1160.

Jose speaks little English and he understood very little about his immigration case. See Lopez

Decl. ¶ 3. Jose did not know that he was required to attend all removal hearings or that he had

been scheduled for a hearing on July 20, 2014. Id. ¶ 5. Even if he had, he cannot drive and he

has no way to get himself to immigration court on his own. Id. ¶ 6; see also Flores-Chavez, 362

F.3d at 1159 (“Indeed, at age fourteen, a minor could not even drive himself to a hearing that he

is required to attend, and might well be unable to navigate a public transportation system.”).

Instead, Jose depended on a “responsible adult” to inform him of his removal proceedings and

take care that he attend. See Flores-Chavez, 362 F.3d at 1157. Even if the Court were to find

that Jose’s aunt was properly served with Jose’s NTA and received proper notice of his removal

   

5

hearing—a virtual impossibility on this record—Jose should not be held responsible for any

failure of the adult charged with ensuring his attendance in court. Cf. Duran v. Gonzales, 158

Fed. Appx 12, 13-14 (9th 2005) (granting motion to reopen based on exceptional circumstances

where illiterate respondent relied on a neighbor to translate the hearing notice and the neighbor

translated the date incorrectly). Jose’s age, vulnerability, and the failure of a responsible adult to

ensure his presence at his removal hearing constitute exceptional circumstances, and accordingly

this Motion should be granted.

III. CONCLUSION

For the foregoing reasons, Jose respectfully requests that this Court reopen his removal

proceedings and rescind his in absentia order of removal.

Dated: December 12, 2014 Respectfully Submitted, PUBLIC COUNSEL

By: Sara Van Hofwegen, Esq.