B.R. v. Garland
| Decision Date | 23 February 2022 |
| Docket Number | 19-70386 |
| Court | U.S. Court of Appeals — Ninth Circuit |
| Parties | B.R., Petitioner, v. Merrick B. Garland, Attorney General, Respondent. |
Argued and Submitted February 9, 2021 San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A200-822-829
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; Andrew C Maclachlan, Senior Litigation Counsel; Anthony C. Payne and John W. Blakeley, Assistant Directors; Brian M. Boynton, Acting Assistant Attorney General; 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; Eimeric Reig-Plessis, Winston & Strawn LLP, San Francisco, California; for Amicus Curiae Catholic Legal Immigration Network, Inc. (Clinic).
Thomas R. Kreller, Linda Dakin-Grimm, and Mohammad Tehrani, Milbank LLP, Los Angeles, California, for Amicus Curiae Immigrant Legal Resource Center.
Before: Kim McLane Wardlaw and Carlos T. Bea, Circuit Judges, and Lee H. Rosenthal, [*] District Judge.
The panel filed: 1) an order granting Respondent's petition for panel rehearing, withdrawing the opinion filed July 12, 2021, replacing that opinion with a superseding opinion, and denying as moot the petition for rehearing en banc; and 2) a superseding opinion denying in part and granting in part B.R's petition for review of a decision of the Board of Immigration Appeals, and remanding. In the superseding opinion, the panel held that 1) substantial evidence supported the agency's conclusion that B.R. was properly served a copy of his Notice to Appear ("NTA"); 2) the Department of Homeland Security ("DHS") later cured its initial failure to serve the NTA on B.R.'s custodian when he was released from detention as a minor; 3) the agency erred by failing to credit or discredit B.R.'s specific evidence that the government's evidence of alienage was tainted by violations of his rights; and 4) the evidence did not compel reversal of the agency's denial of protection under the Convention Against Torture.
As to the issue of personal service, the panel concluded that B.R.'s declaration stating that he did not remember receiving a copy of the NTA fell far short of the evidence needed to rebut the presumption of proper personal service. As to the issue of service on B.R's custodian (his mother), B.R. relied Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), which held that DHS must provide service of an NTA on the custodians of juvenile aliens released from custody. The parties agreed that, after releasing B.R. from its custody, DHS never served the NTA on his custodian and that, under Flores-Chavez, DHS's original NTA service was thus insufficient. However, the parties disputed whether the error was fatal to DHS's efforts to remove B.R.
As a general matter, the panel held that, absent a showing of prejudice, improper service of an NTA can be cured. The panel explained that the statute does not require notice at a particular moment and that nothing in the statute or regulations requires termination in this context. The panel also considered Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020), where the court addressed the similar issue of the service of a defective NTA. There, the court held that the remedy is to provide DHS an opportunity to cure the defect in the NTA rather than to order termination. The panel concluded that it logically proceeds that the remedy for improper service of an NTA is for proper service to be provided at a later time, provided the alien is not prejudiced. B.R. argued that a different rule exists for minors released from DHS custody. The panel rejected that contention, explaining that Flores-Chavez 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. Here, the panel held that DHS cured the defective service by later properly serving a copy of the NTA on B.R.'s counsel, after B.R. became an adult, and before substantive proceedings had commenced. Therefore, the panel concluded that regardless whether DHS's improper service failed to vest the immigration court with jurisdiction initially, the immigration court had jurisdiction throughout all of B.R.'s substantive removal proceedings subsequent to DHS's perfection of service on B.R. B.R. also argued that DHS's failure to serve B.R.'s mother and the seven-year gap between that initial failure and its perfection were egregious regulatory violations requiring termination. Because the agency failed to address this argument below, the panel remanded to the agency to consider whether DHS committed an egregious regulatory violation and whether the violation prejudiced B.R.
As to the question of alienage, the panel explained that DHS initially submitted three I-213 (Record of Deportable/Inadmissible Alien) forms to meet its burden of establishing alienage. B.R. moved to suppress, claiming the forms had been created using his juvenile court records, in violation of California privacy laws and his constitutional rights. DHS then submitted supplemental evidence of alienage: a Mexican birth certificate and a presentence investigation report. The IJ assumed that B.R. made out a prima facie case of a violation of federal regulations or his constitutional rights, but rather than following the normal burden shifting framework, the IJ addressed whether the supplemental evidence was obtained independently of the claimed unlawful act or of the I-213s, before B.R. moved to suppress the supplemental evidence based on taint.
The panel observed that the decision preemptively to find evidence to be independent of a suppressible violation may be a valid course in some circumstances, but not in these circumstances. Here, B.R. subsequently presented specific evidence that at least the birth certificate was itself the product of tainted evidence. However, the panel concluded that nothing in the record indicated that the agency seriously considered B.R.'s evidence of taint; instead, it appeared that the agency arbitrarily ignored it and found the government's evidence free from taint. The panel concluded that this was error and an abuse of discretion. Therefore, the panel remanded with instructions to afford DHS the opportunity to rebut B.R.'s evidence of taint.
The panel noted that B.R. never submitted specific evidence that DHS's presentence investigation report was tainted. Even so, the panel wrote that it had serious misgivings as to the propriety of the admission of the presentence investigation report that should be addressed on remand, including how DHS obtained the report when it was placed under seal by the federal district court.
Finally, the panel held that nothing in the record compelled the conclusion that the Mexican government would torture B.R. or acquiesce in his torture for purposes of CAT relief.
ORDERRespondent's petition for panel rehearing, Docket No. 81, is GRANTED without further oral argument. The Opinion filed July 12, 2021, and reported at 4 F.4th 783, is hereby WITHDRAWN and replaced with a superseding Opinion filed concurrently with this Order. The petition for rehearing en banc, Docket No. 81, is DENIED AS MOOT.
Future petitions for rehearing will be permitted under the deadlines outlined in Federal Rules of Appellate Procedure 35(c) and 40(a)(1).
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, thereby failing to vest the immigration court with jurisdiction, and that DHS should not have been permitted to cure that service violation. We reject and deny the claim with one small exception. 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. We do remand, however, on B.R.'s argument that DHS nevertheless committed an egregious regulatory violation...
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