B.R. v. Garland

• Decision Date: 12 July 2021
• Docket Number: No. 19-70386,19-70386
• Citation: 4 F.4th 783
• Parties: B.R., Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

4 F.4th 783

B.R., Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 19-70386

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 9, 2021 San Francisco, California

Filed July 12, 2021

Kristen Jackson (argued), Public Counsel, Los Angeles, California; Hayley Upshaw, San Francisco Public Defender's Office, San Francisco, California; for Petitioner.

Jennifer A. Bowen (argued), Trial Attorney; Anthony C. Payne, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Mark T. Roche, Baker & McKenzie LLP, San Francisco, California, for Amici Curiae Legal Services for Children, Children's Law Center of California, Law Foundation of Silicon Valley, and Pacific Juvenile Defender Center.

Nareeneh Sohbatian and Nimalka Wickramasekera, Winston & Strawn LLP, Los Angeles, California; Ashley A. Chung, Winston & Strawn LLP, Chicago, Illinois; for Amicus Curiae Catholic Legal Immigration Network, Inc. (Clinic).

Before: Kim McLane Wardlaw and Carlos T. Bea, Circuit Judges, and Lee H. Rosenthal,^* District Judge.

BEA, Circuit Judge:

As a minor, petitioner B.R. had multiple run-ins with the law and accumulated a lengthy juvenile court record with the State of California—a record that states he was born in Mexico. B.R. soon came to the attention of the Department of Homeland Security ("DHS"), which suspected he was not lawfully present in the United States. DHS took B.R. into custody while he was still a minor, issued him a Notice to Appear ("NTA"), and initiated removal proceedings against him. After he was released and while those proceedings were ongoing, B.R. sold methamphetamine to an undercover federal officer. He was incarcerated, and, in 2018, he was ordered removed.

B.R. now seeks review of the Board of Immigration Appeals’ ("BIA") dismissal of his appeal from the Immigration Judge's ("IJ") final order of removal and denial of his application for deferral of removal under the Convention Against Torture ("CAT"). He presents three main arguments. First, he claims DHS effected improper service of the NTA, depriving the immigration court of jurisdiction, and that DHS should not have been permitted to cure that service violation. We reject and deny the claim. The IJ is permitted to allow DHS to cure defective service without terminating proceedings, provided that the alien does not demonstrate that DHS's defective service prejudiced the alien's interests. Here, DHS cured its defective service prior to any substantive removal proceedings and B.R. demonstrated no prejudice from the delay. Our holding in Flores-Chavez v. Ashcroft , 362 F.3d 1150 (9th Cir. 2004), does not require DHS to serve an NTA upon a minor alien's custodian at the very moment the alien is released from its custody.

Second, B.R. contends the evidence DHS submitted to support its charge that B.R. was born in Mexico should be suppressed because DHS did not obtain the evidence independently of B.R.’s confidential juvenile court records (records which he alleges DHS obtained in violation of California privacy laws and his constitutional rights). The exclusionary rule is generally not available in immigration proceedings, but we hold that once an alien makes a prima facie showing of an egregious regulatory or Fourth Amendment violation warranting suppression and submits specific evidence that the government's evidence is tainted, the government has the burden and opportunity to rebut that claim of taint. The IJ erred in failing to credit B.R.’s specific evidence of taint. We grant B.R.’s petition for review on this issue and remand for further development of the record.

Finally, B.R. argues the BIA erred in concluding he is not entitled to deferral of removal under CAT. In the interest of judicial economy, in the event DHS is able to prove B.R.’s alienage on remand, we reject now his assignments of error as to his CAT claim. The generalized country reports upon which he exclusively relies would not compel any reasonable adjudicator to conclude that the Mexican government would torture or acquiesce in his torture from the various actors he identifies.

I. BACKGROUND

B.R., now twenty-six years old, has lived since childhood in California with his mother and siblings. As a juvenile, B.R. was arrested multiple times and accumulated a juvenile record with the State of California, a record which indicates that B.R. was born in Mexico. In 2010, while sixteen-year-old B.R. was detained on charges of possession of a concealed firearm as a minor, an Immigration and Customs Enforcement ("ICE") agent interviewed him. The agent determined B.R. was a native and citizen of Mexico, memorializing that determination in a Form I-213 (Record of Deportable/Inadmissible Alien), which DHS used to initiate deportation proceedings.¹ B.R. insists now that he never told the ICE agent that he was born in Mexico.

On October 19, 2010, DHS detained sixteen-year-old B.R. and charged him with removability as an alien who is present in the U.S. without lawful admission or parole, pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). That same day, DHS served B.R. with an NTA. B.R. signed the certificate of service but has since stated that he does not "remember" being given a copy of the NTA. On October 20, 2010, DHS filed the NTA with the Executive Office for Immigration Review ("EOIR"). B.R. was deemed an unaccompanied minor and remained in custody until he was eventually released to his mother in March 2011. Upon his release, DHS failed to serve a copy of the NTA on B.R.’s mother. In fact, DHS has never served B.R.’s mother with his NTA.

Nevertheless, in compliance with the NTA, B.R. appeared at his first removal hearing in October 2011 at the age of seventeen. It was the only removal hearing B.R. attended as a minor, and it was continued so B.R. could find counsel. Twice more, in 2012 (after he turned eighteen), B.R. appeared at removal hearings without a lawyer. Both times he was granted continuances to find counsel. No pleadings were filed, no substantive issues were addressed, and no orders of removal were entered at these hearings.

In 2013, while immigration proceedings were still ongoing, B.R. (then nineteen) sold methamphetamine to an undercover federal officer. He was indicted on six federal charges of possession with intent to distribute but pleaded guilty to and was convicted only for one count of conspiracy to possess with intent to distribute methamphetamine and received a sixty-month sentence. While B.R. was in prison, he failed to appear at his removal hearing and was ordered removed in absentia . But in 2017, after learning B.R. had failed to appear because he was incarcerated, the IJ granted DHS's motion to reopen the proceedings.

In January 2018, B.R. (now represented by an attorney) moved to terminate proceedings on the ground that DHS failed to effectuate proper service in 2011 by failing to serve a copy of his NTA on B.R.’s custodian (his mother) when he was released to her custody, which he argued was required for minor aliens pursuant to Flores-Chavez v. Ashcroft , 362 F.3d 1150 (9th Cir. 2004). The IJ acknowledged that DHS's 2011 NTA service was improper under our Flores-Chavez rule, but denied the motion after concluding that DHS was permitted to perfect service by re-serving the NTA on then-adult B.R. The IJ noted DHS had done so by re-serving the NTA by mail on B.R.’s counsel as an attachment to the agency's response to B.R.’s motion.

In March 2018, B.R. filed a motion to suppress evidence and to terminate proceedings, in which he argued that the three I-213s that DHS had assembled and submitted as evidence of B.R.’s alienage improperly relied on B.R.’s confidential juvenile records—an act B.R. argued was a violation of his Fourth and Fifth Amendment rights and an egregious regulatory violation—and that these forms should be suppressed. B.R. argued that without the I-213s, DHS, which at that point had submitted no other evidence of his alienage, failed to meet its burden of establishing that B.R. was born in Mexico. In response to the motion, DHS submitted two additional pieces of evidence of alienage: (1) B.R.’s Mexican birth certificate, and (2) a district court presentence investigation report which stated that B.R. was born in Mexico.²

On April 6, 2018, the IJ denied the motion to suppress evidence and to terminate proceedings. The IJ refrained from deciding whether DHS had acted unlawfully with respect to B.R.’s juvenile records in the preparation of the I-213s but assumed for purposes of analysis that DHS had indeed obtained information for the I-213s unlawfully. Sidestepping the merits, the IJ held that DHS's supplemental evidence (the Mexican birth certificate and the district court presentence report) was obtained based on B.R.’s identity alone, which, regardless of any alleged constitutional or regulatory violation, cannot be suppressed. Thus, the IJ found the supplementary evidence insuppressible and determined that DHS had proved B.R.’s Mexican alienage by clear, unequivocal, and convincing evidence, even without the I-213s. The IJ then dismissed B.R.’s motion to suppress the I-213s and to terminate removal proceedings as moot.

B.R. moved for reconsideration of that order, arguing that: (a) his due process rights were violated because the IJ admitted DHS's supplemental evidence without giving him adequate time to review and respond; (b) the supplemental evidence was not obtained independently of the I-213s or his state juvenile records and accordingly are tainted by the alleged constitutional violations; (c) the evidence was improperly authenticated; and (d) the presentence investigation report was sealed by the district court and improperly obtained and submitted by DHS. The IJ considered the motion as a form of reply to DHS's response and evidence, but denied the motion to reconsider and sustained the charge of removability against B.R.

As to relief from...