On December 16, 2016 the Board of Immigration Appeals (BIA or Board) issued a decision in a case where the Immigration Judge (IJ) had terminated removal proceedings against a minor respondent because the Department of Homeland Security (DHS) had not properly served him with the Notice to Appear (NTA), holding that even though DHS had not followed the regulatory requirements for serving an NTA on a minor under the age of 14, it was entitled to “another opportunity to effect proper service”.
When respondent entered the U.S. in June 2015 as an unaccompanied child, DHS issued an NTA charging him with inadmissibility as one present without being admitted or paroled. However, the Department did not serve the NTA on the person with whom respondent resided at the time, contravening 8 C.F.R. §103.8(c)(2)ii). Respondent thus moved to terminate proceedings asserting improper service; over DHS’s objection, the IJ granted the motion and terminated proceedings on the basis of noncompliance with the regulations.
In its opinion, the BIA noted that while the regulations do not “explicitly” require service on the parents of a minor respondent, they do require such service if possible when the child will be residing with his or her parents in the U.S. Thus, in this instance, the issue on appeal was whether DHS should get another opportunity to effect proper service. The Board noted that on appeal DHS argued the IJ’s decision failed to recognize that it had cured the defect by mailing the NTA to both respondent’s counsel and his mother 2 days after the issue was first raised.
Citing to Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013), the BIA – analogizing the issue to the matter of proper service on individuals lacking mental competency – held that the IJ should have granted DHS a continuance to effect proper service. The Board therefore vacated the lower decision, reinstated proceedings, and remanded the record to the IJ, ordering the Immigration Court to assess whether the re-service accorded with the regulatory requirements and, if necessary, to determine whether DHS should be permitted to once again serve the NTA. Matter of W-A-F-C-, 26 I&N Dec. 880 (BIA 2016).
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