Llapa-Sinchi v. Mukasey

520 F.3d 897, 2008 U.S. App. LEXIS 6462, 2008 WL 819093
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 28, 2008
Docket07-1774
StatusPublished
Cited by21 cases

This text of 520 F.3d 897 (Llapa-Sinchi v. Mukasey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Llapa-Sinchi v. Mukasey, 520 F.3d 897, 2008 U.S. App. LEXIS 6462, 2008 WL 819093 (8th Cir. 2008).

Opinions

MELLOY, Circuit Judge.

Luz Llapa-Sinchi, who entered the United States illegally and was ordered deport-able in absentia, petitions this court to review a Board of Immigration Appeals’ decision finding her ineligible for a suspension of deportation. She is eligible for a suspension of deportation only if she was not properly served with notice of her deportation hearing. The government served Llapa-Sinchi with notice, but she was only fourteen years old at the time. The government did not serve additional notice on a responsible adult. The crux of the dispute is whether the government’s service on Llapa-Sinchi alone was proper service and consistent with due process. The BIA determined the government properly served Llapa-Sinchi with notice. We affirm.

I. Background

Llapa-Sinchi, born in 1980, is a citizen and national of Ecuador. She illegally entered the United States in 1995, when she was fourteen years old. On the same day she entered the country, the government served her in Arizona with an Order To Show Cause that set forth the charge of deportability because she entered without inspection. The Order To Show Cause was in both English and Spanish, and the document indicated that a government official reviewed the document with Llapa-Sinchi in both languages. The government did not serve anyone else with the Order To Show Cause. The government released her to a local legal-assistance organization, which contacted her brother-in-law, who lived in Minnesota. He wired money, enabling Llapa-Sinchi to travel to Minnesota. Two months later, Llapa-Sin-chi’s brother-in-law received a letter offering a change of venue for the hearing. He signed it, and an immigration court approved a change of venue to the jurisdiction of Chicago, Illinois, sitting in Bloom-ington, Minnesota. Llapa-Sinchi failed to appear for her hearing, and an immigration judge ordered her deported in absen-tia.

Eight years later, immigration officials arrested Llapa-Sinchi. She filed a motion to reopen her petition. At the time Llapa-Sinchi was served, immigration law allowed the Attorney General to suspend an individual’s deportation and adjust his or her status to that of a lawful permanent [899]*899resident. 8 U.S.C. § 1254(a)(1) (1994).1 With certain exceptions not applicable here, the Attorney General could suspend the deportation of an individual only if the individual had been “physically present in the United States for a continuous period of not less than seven years,” if the individual was “of good moral character” during this time, and if “deportation would ... result in extreme hardship” to the individual, “or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” Id.; see Tang v. INS, 223 F.3d 713, 715 (8th Cir.2000) (citing-provision). The period of continuous physical presence ended, however, when the individual was properly served with a notice to appear for deportation proceedings. 8 U.S.C. § 1229b(d)(1); see Tang, 223 F.3d at 716, 719 (explaining the stop-time provision, enacted in 1996, and holding it applies retroactively).

The BIA determined that Llapa-Sinchi “deserved a favorable exercise of [its] discretion” to grant a suspension of deportation. However, the BIA determined Lla-pa-Sinchi was ineligible for a suspension of deportation; she did not establish the requisite period of physical presence because the period ended when she was properly served with notice to appear for deportation proceedings on the day she entered the country.

The BIA determined Llapa-Sinchi’s service was proper and explained 8 C.F.R. § 103.5a(e)(2)(ii) requires service on an alternative party only for minors younger than fourteen years old. This regulation specifically provides that service “shall be made upon the person with whom ... the minor resides” when the minor is younger than fourteen years old. 8 C.F.R. § 103.5a(c)(2)(ii). The regulations are silent regarding service for minors fourteen years old and older. Thus, the BIA reasoned, those between fourteen and eighteen years old are governed by the general notice provision, which requires that notice “shall be given in person to the alien.” 8 U.S.C. § 1252b(a)(l) (1994).2

Llapa-Sinchi argues she was not properly served with notice for two reasons.3 She alleges the government violated her due-process rights because it served only her, as a minor, and not an adult. She also alleges the BIA and this court are bound by a Ninth Circuit case holding that service to minor aliens alone is insufficient for proper notice.

II. Discussion

“[W]e review an agency’s legal determinations de novo, according substantial deference to the agency’s interpretation of the statutes and regulations it administers.” Tang, 223 F.3d at 718-19 (quotation omitted). We thus review de novo the “the BIA’s conclusion that the ‘stop-time’ provision ... applies to [the] [petitioner.” Id. at 719.

The BIA determined the government properly served Llapa-Sinchi even though it did not serve a responsible adult, because she was fourteen years old or older at the time and service was thus governed by the general notice provision. See 8 U.S.C. § 1252b(a)(1) (1994). Only if the minor is younger than fourteen years old must the government also serve an adult. 8 C.F.R. § 103.5a(c)(2). We defer to the BIA’s reasonable interpretation of those regulations and hold that the govern[900]*900ment properly served Llapa-Sinchi with notice.

We also hold 8 C.F.R. § 103.5a(c)(2)(ii) does not violate the due process clause. We review constitutional issues de novo. See Coal, for Fair and Equitable Reg. of Docks on the Lake of the Ozarks v. Fed. Energy Reg. Comm’n, 297 F.3d 771, 778 (8th Cir.2002) (noting that although “we accord substantial deference to an agency’s interpretation of its own regulation, ... we review de novo constitutional questions, such as ... due process claims”).

Llapa-Sinchi has not argued that particular facts surrounding her service of process caused it to run afoul of due process; her arguments are based only on her status as a minor. We decline Llapa-Sinchi’s invitation to adopt a per se rule that service to minors alone always violates the constitution.

Minors can be responsible for their own legal status and can waive their constitutional rights. Courts have repeatedly held this, and statutes have long allowed it.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Carine Adongafac v. Merrick B. Garland
53 F.4th 1114 (Eighth Circuit, 2022)
Fredis Artola v. Merrick B. Garland
996 F.3d 840 (Eighth Circuit, 2021)
James Carson v. Steve Simon
Eighth Circuit, 2020
Ronald Calzone v. Donald Summers
942 F.3d 415 (Eighth Circuit, 2019)
CASTRO-TUM
27 I. & N. Dec. 271 (Board of Immigration Appeals, 2018)
Urvashi Patel v. Jefferson B. Sessions, III
868 F.3d 719 (Eighth Circuit, 2017)
CUBOR
25 I. & N. Dec. 470 (Board of Immigration Appeals, 2011)
Sandoval v. Holder
641 F.3d 982 (Eighth Circuit, 2011)
Woodman v. Kera LLC
785 N.W.2d 1 (Michigan Supreme Court, 2010)
Lopez-Dubon v. Holder
609 F.3d 642 (Fifth Circuit, 2010)
Ibrahimi v. Holder
566 F.3d 758 (Eighth Circuit, 2009)
Llanos-Fernandez v. Mukasey
Second Circuit, 2008
Llapa-Sinchi v. Mukasey
520 F.3d 897 (Eighth Circuit, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
520 F.3d 897, 2008 U.S. App. LEXIS 6462, 2008 WL 819093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/llapa-sinchi-v-mukasey-ca8-2008.