Nolcasco v. Holder

• Court: Court of Appeals for the Second Circuit
• Decided: February 25, 2011
• Docket: 09-5206
• Status: Published

Opinion

09-5206-ag, 10-2780-ag Nolcasco v. Holder BIA Straus, IJ A99 471 824

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _____________________

August Term, 2010 (Argued: February 7, 2011; Decided: February 25,2011) Docket Nos. 09-5206-ag, 10-2780-ag _________________

ROSELIA LAZARO NOLASCO,*

Petitioner,

-v.-

ERIC H. HOLDER, JR., United States Attorney General,

Respondent.

_______________________

BEFORE: JACOBS, Chief Judge, HALL, Circuit Judge, SCHEINDLIN, District Judge.* _______________________

* Although Petitioner is identified as Beatrice Magana- Gallejo throughout all of the underlying proceedings, Petitioner states in her brief that her real name is Roselia Lazaro Nolasco. The Clerk of the Court is directed to amend the official caption accordingly. * Judge Shira A. Scheindlin of the United States District Court for the Southern District of New York, sitting by designation.

1 Petition for review of a decision of the Board of

Immigration Appeals denying Petitioner’s motion to

reconsider the Board’s prior affirmance of the immigration

judge’s denial of Petitioner’s application for asylum and

withholding of removal. Petitioner argues that the Board

and the immigration judge lacked jurisdiction to adjudicate

her removal proceeding because service of her Notice to

Appear was inconsistent with 8 C.F.R. §§ 103.5a(c)(2)(ii).

We conclude that the agency’s failure to make proper service

under the circumstances in this case did not implicate

Petitioner’s fundamental rights, and Petitioner was not

prejudiced by the agency’s actions. PETITION FOR REVIEW

DENIED.

MICHAEL J. BOYLE, North Haven, Connecticut, for Petitioner.

SARAH VUONG, Trial Attorney (Tony West, Assistant Attorney General, Emily Anne Radford, Assistant Director, Jesse D. Lorenz, Trial Attorney, on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

2 PER CURIAM:

Petition for review of a decision of the Board of

Petitioner has also filed a petition for review (Docket

No. 09-5206-ag) of a decision of the BIA affirming the

immigration judge’s denial of Petitioner’s application for

asylum and withholding of removal. Because Petitioner does

not challenge that decision in her brief on appeal, we deem

any such challenge waived and DENY that petition on this

basis. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 546 n.7

(2d Cir. 2005) (holding that where petitioner devoted only a

3 “single conclusory sentence” to the argument that he had

demonstrated a well-founded fear of persecution, that claim

was waived); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d

Cir. 1998) (“Issues not sufficiently argued in the briefs

are considered waived and normally will not be addressed on

appeal.”). Our opinion is therefore limited to the petition

for review of the Board’s denial of Petitioner’s motion to

reconsider.

BACKGROUND

On April 13, 2006, Petitioner Roselia Lazaro Nolasco, a

native and citizen of El Salvador, was served with a Notice to

Appear (“NTA”) while in Department of Homeland Security (“DHS”)

custody. The NTA alleged that she entered the United States two

days earlier in Arizona and was present in the United States

without having been admitted or paroled, in violation of 8 U.S.C.

§ 1182(a)(6)(A)(i). It is undisputed that Petitioner was nine

years old at the time of service. Petitioner was released from

custody the following day, and on April 20, her father filed a

change of address form and successfully moved on her behalf to

change venue to Hartford, Connecticut. In November 2006,

Petitioner appeared before the immigration judge accompanied by

counsel and her parents. Through counsel, she admitted the

allegations in the NTA, conceded removability as charged, and

4 filed an application for asylum and withholding of removal.

Although there was extensive discussion of Petitioner’s youth,

neither the Immigration Judge nor the lawyers for Petitioner and

Respondent raised the issue of whether service of the NTA was

proper and whether the court had jurisdiction to hear the case.

In March 2008, following a merits hearing (at which Petitioner’s

father testified), the immigration judge denied Petitioner’s

asylum application and ordered her removed to El Salvador; the

Board of Immigration Appeals (“BIA”) summarily affirmed that

decision without opinion. See In re Beatrice Magana-Gallejo, No.

A099 471 824 (B.I.A. Nov. 18, 2009), aff’g No. 099 471 824

(Immig. Ct. Hartford, CT, Mar. 3, 2008).

In December 2009, Petitioner filed a motion for

reconsideration before the BIA, arguing for the first time that

both the BIA and the immigration judge lacked jurisdiction over

her removal proceedings because her NTA was served improperly.

She asserted that because she was a minor at the time of service,

DHS was obligated under 8 C.F.R. § 103.5a(c)(2)(ii) to effect

service simultaneously on her parents or a legal guardian, and

that the agency’s failure to comply with this regulation

warranted termination of her removal proceedings. The BIA denied

her motion. See In re Beatrice Magana-Gallejo, No. A099 471 824

(B.I.A. Jun. 11, 2010). It concluded that, because Petitioner

was represented by counsel and accompanied by her parents at her

5 removal proceedings, none of her fundamental rights were violated

by any technical defect in service. Id. Petitioner now seeks

review of that decision.

DISCUSSION

We review the BIA’s denial of a motion to reconsider for

abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.

2005) (per curiam). As a preliminary matter, because Petitioner

conceded her removability as charged before the immigration court

and did not raise the issue of improper service in those

proceedings or on appeal before the BIA (other than in her motion

to reconsider), she has arguably waived any claim that the agency

lacked jurisdiction based on any defect in service of the NTA.

See Qureshi v. Gonzales, 442 F.3d 985, 990 (7th Cir. 2006) (“When

a petitioner expressly concedes his removability as charged in

the NTA, he waives any objection to the IJ’s finding of

removability, including the argument that the IJ lacked

jurisdiction to find him removable.”). Nevertheless, we exercise

our discretion and consider Petitioner’s claim on the merits

because it raises an important issue as yet unaddressed by this

Court — namely, whether service of the NTA violates a fundamental

right when it is only effectuated upon a minor. Cf. In re Nortel

Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008)(per

curiam)(“[O]ur waiver doctrine is entirely prudential.”).

6 Section 1229 of Title 8 of the United States Code, which

governs the initiation of removal proceedings, provides in

relevant part that “written notice (in this section referred to

as a ‘notice to appear’) shall be given in person to the alien

(or, if personal service is not practicable, through service by

mail to the alien or to the alien’s counsel of record, if any).”

8 U.S.C. § 1229(a)(1). Although the statute is silent with

respect to service on minors, corresponding regulations state

that when effecting service on a minor (i.e., an alien under 14

years of age), “service shall be made upon the person with whom

. . . the minor resides,” and “whenever possible, service shall

also be made on the near relative, guardian, committee, or

friend.” 8 C.F.R. § 103.5a(c)(2)(ii); see 8 C.F.R. § 236.2(a)

(mandating that service of an NTA on a minor shall be effected in

the manner prescribed by § 103.5a(c)(2)). Petitioner was not

living with anyone at the relevant moment; but it does appear

that service on her parents may have been possible by some means.

In any event, the Government effectively concedes that DHS failed

to comply with this regulation because it only served the NTA on

Petitioner, a nine year-old child.

Where the agency fails to follow its own regulations, we

will remand to invalidate the challenged proceeding only where

the alien demonstrates “prejudice to the rights sought to be

protected by the subject regulation,” or where the “regulation

7 [at issue] is promulgated to protect a fundamental right derived

from the Constitution or a federal statute.” Waldron v. I.N.S.

17 F.3d 511, 518 (2d Cir. 1993); accord Ali v. Mukasey, 524 F.3d

145, 149 (2d Cir. 2008). The issue presented by this petition is

whether deficient service of a NTA under 8 C.F.R. §

103.5a(c)(2)(ii) implicates a minor alien’s fundamental rights

and, if it does not, whether DHS’s actions in this case caused

Petitioner prejudice. We answer both questions in the negative.

“It is well established that the Fifth Amendment entitles

aliens to due process of law in [removal] proceedings,” Reno v.

Flores, 507 U.S. 292, 306 (1993). “At the core of due process is

the right to notice of the nature of the charges and a meaningful

opportunity to be heard.” Brown v. Ashcroft, 360 F.3d 346, 350

(2d Cir. 2004) (internal quotation marks omitted); see Li Hua Lin

v. U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d Cir.

2006)(“‘Due process requires that an applicant receive a full and

fair hearing which provides a meaningful opportunity to be

heard.’” (quoting Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th

Cir. 2004)). “Congress, in enacting the immigration laws, has

codified these rights by requiring that a Notice to Appear be

served upon aliens in removal proceedings,” Brown, 360 F.3d at

351, and under 8 U.S.C. § 1229(a)(1), an NTA shall specify, inter

alia, the “nature of the proceedings against the alien,” the

“time and place at which the proceedings will be held,” the “acts

8 or conduct alleged to be in violation of law,” the “charges

against the alien and the statutory provisions alleged to have

been violated,” and shall inform the alien that she may be

represented by counsel. Thus, in most instances, if an alien

receives notice of this information and a meaningful opportunity

to participate in her removal proceedings, due process is

satisfied. See Pierre v. Holder, 588 F.3d 767, 777 (2d Cir.

2009) (the “core” due process right in immigration proceedings is

“notice and an opportunity to be heard”); see also Chase Group

Alliance LLC v. City of New York Dep’t of Fin., 620 F.3d 146, 150

(2d Cir. 2010) (“‘An essential principle of due process is that a

deprivation of . . . liberty . . . be preceded by notice and

opportunity for hearing appropriate to the nature of the case.’”

(quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542

(1985)).

It is undisputed that DHS served Petitioner with a copy of

the NTA, that the NTA comported with the requirements of 8 U.S.C.

§1229(a)(1), and that within a week of being served, Petitioner’s

father filed a change of address form and a motion to change

venue. There is no question, therefore, that Petitioner’s

parents were aware she had been placed in removal proceedings.

Indeed, they took affirmative steps to transfer her proceedings

to Connecticut where they resided. In addition, Petitioner’s

parents hired counsel and timely appeared along with Petitioner

9 and her attorney at the initial hearing before the immigration

judge, where, through counsel, Petitioner admitted the

allegations in the NTA and conceded removability as charged.

Petitioner also sought relief before the immigration judge by

filing an asylum application, and after a full merits hearing,

her application was denied and the immigration judge ordered her

removed.

We have no difficulty concluding that on these facts,

Petitioner was afforded due process. She was aware of the nature

of the immigration proceedings and the time and place when those

proceedings would be held; she was informed of the Government’s

allegations against her and the statutory violations which she

was alleged to have committed; she was advised that she could be

represented by counsel and, indeed, counsel appeared on her

behalf; she appeared before the immigration judge and was granted

a full opportunity to pursue relief from removal. See Pierre,

588 F.3d at 777; Li Hua Lin, 453 F.3d at 104-05.

Petitioner argues nonetheless that she was denied a

fundamental right because DHS did not effect service of the NTA

in a manner consistent with 8 C.F.R. § 103.5a(c)(2)(ii). She is

mistaken. “‘[T]he purpose of requiring service of a notice to

appear on the person with whom a minor respondent resides [is] to

direct service of the charging document upon the person . . .

most likely to be responsible for ensuring that an alien appears

10 before the Immigration Court at the scheduled time.’” Llanos-

Fernandez v. Mukasey, 535 F.3d 79, 85 (2d Cir. 2008)(quoting In

re Mejia-Andino, 23 I. & N. Dec. 533, 536 (BIA 2002)). In this

respect, the regulation is designed to increase the probability

that a minor, like any adult alien, has notice of the charges

filed against her and thus may appear before the immigration

court and participate in the proceedings.

However, to the extent 8 C.F.R. § 103.5a(c)(2)(ii)

implicates a due process right, that right is to receive notice

provided for in the NTA. And where it is clear that the minor

alien received such notice, she has no due process claim,

regardless of any technical defect in the manner in which the NTA

has been served. Put differently, if DHS fails to make proper

service on a minor alien under § 103.5a(c)(2)(ii) and that defect

in service prevents the minor from receiving notice of the NTA

and a meaningful opportunity to participate in her removal

proceedings, that could implicate the minor alien’s fundamental

rights. But a defect in service, standing alone, does not.

Here, the record is replete with proof that both Petitioner and

her parents received actual notice of the contents of the NTA and

were afforded a full and fair hearing before the immigration

judge. There is no question, therefore, that Petitioner was

afforded due process. DHS’s failure to make proper service did

not implicate her fundamental rights.

11 We hasten to add, however, that our holding in this case

should not be construed as rendering superfluous DHS’s obligation

under 8 C.F.R. § 103.5a(c)(2)(ii) to effect service of a NTA upon

the adult with whom a minor alien resides. There may well be

instances in which DHS’s failure to comply with 8 C.F.R. §

103.5a(c)(2)(ii) results in a lack of notice or the denial of a

meaningful opportunity to be heard such that the minor alien’s

due process rights are violated; for example, when DHS’s failure

to make proper service of a NTA culminates in the entry of an in

abstentia removal order. See In re Mejia-Andino, 23 I. & N. Dec.

533 (B.I.A. 2002)(vacating a removal order where minor’s parents

never received notice of a hearing). Plainly, this did not occur

here.

Because Petitioner cannot demonstrate that DHS’s error

implicated a fundamental right, under Waldron, 17 F.3d at 518,

remand is warranted only if the defect in service caused

Petitioner prejudice. For the reasons already identified,

Petitioner cannot make this showing because the record indicates

that her parents received actual notice of the NTA, and we find

no evidence to suggest that DHS’s failure to comply with 8 C.F.R.

§ 103.5a(c)(2)(ii) had any adverse effect on Petitioner’s ability

to answer the Government’s charges.

We conclude, therefore, that the BIA did not abuse its

discretion by denying Petitioner’s motion to reconsider.

CONCLUSION

The petition for review is DENIED.