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Interim Decision #3483

In re Glendi GOMEZ-GOMEZ, Respondent

File A77 482 742 - Harlingen

Decided December 4, 2002

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The Immigration and Naturalization Service met its burden, in an in absentia removal

proceeding, of establishing a minor respondent’s removability by clear, unequivocal, and

convincing evidence, where (1) a Record of Deportable/Inadmissible Alien (Form I-213)

was submitted, documenting the respondent’s identity and alienage; (2) the respondent,

who failed without good cause to appear at her removal hearing, made no challenge to the

admissibility of the Form I-213; (3) there were no grounds for a finding that the admission

of the Form I-213 would be fundamentally unfair; and (4) no independent evidence in the

record supported the Immigration Judge’s conclusion that the respondent may not have

been the child of the adult who claimed to be the respondent’s parent and who furnished

the information regarding her foreign citizenship. Matter of Ponce-Hernandez, 22 I&N

Dec. 784 (BIA 1999), followed.

(2) The respondent, a minor who could not be expected to attend immigration proceedings

on her own, was properly notified of her hearing, through proper mailing of a Notice to

Appear (Form I-862) to the last address provided by her parent, with whom she was

residing.

Pro se

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Sylvia H. Alonso,

Appellate Counsel, and Lisa M. Putnam, Assistant District Counsel

BEFORE: Board En Banc: SCIALABBA, Chairman; DUNNE, Vice Chairman; HOLMES,

HURWITZ, VILLAGELIU, FILPPU, COLE, GRANT, MILLER, HESS, and

PAULEY, Board Members. Dissenting Opinion: SCHMIDT, Board Member,

joined by GUENDELSBERGER, MOSCATO, BRENNAN, ESPENOZA, and

OSUNA, Board Members.

PAULEY, Board Member:

This case was most recently before us on May 17, 2002, when we

dismissed an appeal by the Immigration and Naturalization Service from the

Immigration Judge’s March 6, 2000, decision terminating the minor

respondent’s removal proceedings. The Service has filed a timely motion

requesting en banc reconsideration of our decision. The Service’s motion

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Interim Decision #3483

will be granted. Upon reconsideration, the appeal will be sustained, our

decision will be vacated, and the record will be remanded for further

proceedings.

I. ISSUES

Two issues are presented in the motion to reconsider: (1) whether the

Service proved that the respondent was removable; and (2) whether the

respondent received adequate notice of the removal proceedings and was

required to appear.

II. PROOF OF REMOVABILITY AND SUFFICIENCY

OF THE FORM I-213

A. Background

Neither the respondent nor anyone representing her appeared at her hearing

on March 6, 2000. The Service introduced as the sole evidence of the

respondent’s removability a Record of Deportable/Inadmissible Alien (Form

I-213), which was prepared on January 8, 1999,1 by the arresting Border

Patrol agent. In that document, the agent recounted that he apprehended the

8-year-old female respondent at the Trailways bus station in Brownsville,

Texas, during a routine bus check. The agent noted that the respondent was

“in the company” of an adult, who represented that he was her father, Carlos.

The Form I-213 indicated that all information therein about the respondent

was obtained from Carlos. This information included the respondent’s date

and place of birth, as well as a mailing address in Houston, Texas. Carlos

also stated that they were coming to the United States to look for work and

that they were natives and citizens of Guatemala, who had entered the United

States illegally 2 days earlier by swimming the Rio Grande River from

Mexico.

In a decision dated March 6, 2000, the Immigration Judge found, inter alia,

that removability had not been established by clear, unequivocal, and

convincing evidence. On May 17, 2002, we affirmed, stating that the

Immigration Judge properly declined to rely on the information in the Form

I-213 “given the age of the child . . . and the fact that there was no

independent evidence submitted to establish either the identity of the person

accompanying the respondent or the accuracy of the information provided by

that person.”

1

The Immigration Judge mistakenly gave the date as June 8, 1999.

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Interim Decision #3483

B. Discussion

We have consistently held that absent any evidence that a Form I-213

contains information that is inaccurate or obtained by coercion or duress, that

document, although hearsay, is inherently trustworthy and admissible as

evidence to prove alienage or deportability. See Matter of PonceHernandez, 22 I&N Dec. 784 (BIA 1999); Matter of Barcenas, 19 I&N Dec.

609 (BIA 1988). Likewise, within the jurisdiction of the United States Court

of Appeals for the Fifth Circuit, in which this case arises (and generally

throughout the country), a Form I-213 is admissible and ordinarily sufficient

“for a prima facie case of deportability,” whereupon the “burden shifts to the

alien to prove that he is here legally” under section 291 of the Immigration

and Nationality Act, 8 U.S.C. § 1361 (2000). Bustos-Torres v. INS,

898 F.2d 1053, 1057 (5th Cir. 1990); see also Espinoza v . INS, 45 F.3d 308

(9th Cir. 1995); Matter of Benitez, 19 I&N Dec. 173 (BIA 1984).

The Immigration Judge nevertheless found that the general rule of BustosTorres v. INS, supra, was inapplicable in this case because the respondent

was only 8 years old and the information in the Form I-213 about her alienage

was obtained from an individual who the Immigration Judge determined had

a motive to lie about his parental relationship to the respondent. The

Immigration Judge accordingly found that the information on the Form I-213

that Carlos provided about the respondent could not be deemed sufficiently

reliable, without additional evidence such as the testimony of the arresting

Border Patrol agent, to establish alienage, so as to trigger the operation of

section 291 of the Act.

We first point out that this is not a case in which information on a Form

I-213 is obtained from a minor, as in Matter of Ponce-Hernandez, supra, and

Matter of Amaya, 21 I&N Dec. 583 (BIA 1996). Thus, the considerations

and principles of special care when information is obtained from a minor

respondent, at issue in those cases, are not directly applicable here. In this

case, the question is the reliability of information about a minor respondent’s

alienage obtained from an adult, who the Service believes is accompanying

the minor, and whom it treats as such. The Immigration Judge properly

recognized that in this context, unless some valid cause exists not to credit the

information obtained from Carlos on the Form I-213, the general rule of the

reliability of that document, as recognized in Bustos-Torres v. INS, supra,

would control and require a finding that the respondent was removable. It is

thus critical to examine the basis on which the Immigration Judge determined

that the information on the Form I-213 was not sufficiently reliable.

That basis does not consist of any evidence proffered by the respondent

regarding the assertions of fact in the Form I-213. Indeed, no evidence

directly contesting the particulars of the Form I-213 was introduced because

the respondent failed to appear. Rather, the Immigration Judge predicated her

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Interim Decision #3483

finding of insufficient reliability of the Form I-213 on her belief that adult

aliens in her district who are apprehended with minor aliens are motivated to

make a false claim of parentage or other familial relationship with the minors

because they believe that such a relationship makes it less likely they will be

detained.

The Immigration Judge took administrative notice of the “practice of the

Service in this part of the country to release without requiring payment of any

type of bond adult[s] and juveniles who are traveling together.” In this

regard, she alluded to several instances in her experience in which such false

claims of parentage were made. She also cited to a prosecution, of which she

was aware, involving aliens renting out their children to other adult aliens

seeking to enter this country illegally. See United States v. Cabrera,

288 F.3d 163 (5th Cir. 2002) (involving a child-rental scheme based on a

policy of the United States Border Patrol of returning families with children

to Mexico rather than detaining them and charging them with illegal entry).

The Immigration Judge concluded that because of this motive to fabricate a

parental relationship, the information from Carlos in the Form I-213 about the

respondent’s alienage (as well as other information relating to proper notice,

discussed below) was insufficient, alone, to establish alienage.

The Immigration Judge’s finding, while proceeding in part from a laudable

desire to protect the rights of alien juveniles, does not withstand analysis and

is insufficiently grounded in evidence of record to impugn the contents of the

Form I-213 in this case. See Matter of Ponce-Hernandez, supra. Initially,

we note that it is unclear whether the Immigration Judge could properly take

administrative notice of circumstances arising in other cases or respecting the

practice in her region whereby adult aliens apprehended with juveniles would

be accorded more favorable treatment in terms of the Service’s release

policy.2 We need not resolve this thorny question. Even assuming proper

notice was taken, there is no evidence of record regarding the extent of this

practice and the degree to which it may result in such adult aliens making

false claims of a familial relationship to minors found in their company.3

2

The issue is whether, despite the wide latitude for administrative notice accorded within the

Fifth Circuit to agencies such as the Executive Office for Immigration Review, any or all of

these matters would be deemed the type of “commonly acknowledged” fact about which

administrative notice may legitimately be taken. See Rivera-Cruz v. INS, 948 F.2d 962,

966-68 (5th Cir. 1991); see also Board of Immigration Appeals: Procedural Reforms to

Improve Case Management, 67 Fed. Reg. 54,878, 54,902 (2002) (to be codified at 8 C.F.R.

§ 3.1(d)(3)(iv)) (authorizing the Board to take administrative notice only of “commonly known

facts,” implying that Immigration Judges are subject to the same standard).

3

There are also no specific facts to indicate that Carlos, who claimed to have traveled from

Guatemala all the way across Mexico, would have known about the practice prior to crossing

the border. For example, it is not alleged that he crossed with the aid of a smuggler, who might

(continued...)

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Interim Decision #3483

There is thus a clear and crucial absence of any factual basis for

undermining the trustworthiness of the allegations contained in the Form

I-213, most importantly the assertions that the respondent is Guatemalan and

that Carlos is her father. 4 Moreover, the Form I-213 in this case contains the

information that Carlos was “in the company” of the respondent when they

were arrested during a routine bus check. Although the Form I-213 notes that

“all information” therein came from Carlos, the fact that the two were in each

other’s company clearly reflects an observational fact of the arresting agent;

the information subsequently set forth in the Form I-213 is preceded, as this

observation is not, by the words the “father stated.” The fact that Carlos was

in the company of the respondent, in the setting of a bus depot or on the bus

(the Form I-213 is unclear on this point), reinforces the likelihood of a

genuine familial relationship between them, as he has asserted.

We emphasize that while generally considered to be reliable and sufficient

to establish alienage, not every Form I-213 that alleges alienage must be

ultimately so found.5 The Service would be well advised to include as many

indicia of trustworthiness regarding the information in that document as are

practicable, such as the source of the information and the circumstances of

the alien’s apprehension, as was done here.

Unlike the Immigration Judge, we perceive no adequate basis in this

instance for discounting the reliability of the information contained in the

Form I-213, with respect to both the fact that the adult provider of the

information is the respondent’s father, as alleged, and the fact that they are

aliens from Guatemala. No claim is made that the information in the Form

I-213 was obtained through coercion or duress. As previously discussed, the

sole basis for doubting its veracity is the Immigration Judge’s speculation that

the respondent may not be the child of the adult who so alleged and who

furnished the information about her Guatemalan citizenship.

3

(...continued)

reasonably be presumed to know the Service’s local detention practices and to have imparted

them to Carlos. Nor is there any indication that the respondent might be a child provided to

Carlos in consideration of the Service policy.

4

A different case might be posed if, for example, a study had been done showing that the

Service’s practice of releasing adult aliens with children resulted in a high percentage of false

claims of parentage of minor respondents, and such study was properly made part of the

record.

5

In Matter of Ponce-Hernandez, supra, we placed great weight on the fact that, as here, no

challenge was presented to the information on the Form I-213. But our decision in that case

did not go so far as to hold that any allegation of alienage in a Form I-213, however

conclusory, is sufficient to meet the Service’s burden of proof. See id. at 786-87 (noting that

there was nothing “facially deficient” about the Form I-213 in that case “that would render it

inadmissible,” and proceeding to enumerate the “detailed information” therein that caused the

Form I-213 to meet the requisite standard for finding alienage and to shift the burden of proof

under section 291 of the Act (emphasis added)).

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For the reasons set forth above, we find such grounds for questioning the

accuracy of the information to be insufficient on this record to overcome the

well-settled presumption of reliability that the Form I-213 enjoys and that is

necessary to the efficient enforcement of the immigration laws at our nation’s

borders. We therefore conclude that the Form I-213, like that in BustosTorres v. INS, supra, was sufficient to establish the respondent’s alienage,

thereby bringing into effect the presumption of unlawful presence in section

291 of the Act. We further find that as a result of the respondent’s failure to

appear and the absence of any proof of her entitlement to be in the United

States, the presumption of her unlawful presence was not overcome.

III. ADEQUACY OF NOTICE AND

DUTY TO APPEAR

A. Background

As previously indicated, the Form I-213 listed the respondent’s address as

an apartment in Houston, Texas. On the same day as the Form I-213 was

prepared, the respondent was served with a Notice to Appear (Form I-862),

signed for by Carlos as her father and giving that same address. The Notice

to Appear stated that the respondent’s appearance date at the Immigration

Court would be calendared. Thereafter, four notices, each changing the date

for the respondent’s required appearance, and the last setting the date of

March 6, 2000, were mailed to the respondent at that address and were not

returned to the Immigration Court.

At the March 6, 2000, hearing, neither the respondent nor anyone

representing her appeared. However, the Immigration Judge declined to order

the respondent removed in absentia and terminated the proceedings instead.

As justification for doing so, the Immigration Judge relied, in part, on the lack

of adequate notice to the respondent. She determined that because the

information on the Form I-213 about Carlos’s parental relationship was

unreliable, service of the Notice to Appear on him was insufficient to

establish notice to the respondent. See 8 C.F.R. §§ 103.5a(c)(2)(ii), 236.2

(2002) (providing that service on an alien under 14 years of age shall be made

on the person with whom the minor resides). 6

6

As noted above, the Notice to Appear was addressed to the respondent, rather than to her

father. Because they were residing together, we do not find that this technical violation

resulted in prejudice to the respondent.

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Interim Decision #3483

B. Discussion

Insofar as the Immigration Judge found the service improper for the same

reasons as she found the Form I-213 insufficient to establish alienage, we find

her rationale, which is addressed above, to be erroneous.

The Immigration Judge also found, however, that even if Carlos was the

respondent’s father, he was not required to produce the respondent for her

hearing, and that “it would be a fundamental violation of [her] due process

rights to penalize [her] for failing to appear . . . given . . . that it is impossible

for a child that young to be expected to appear for a hearing on . . . her own.”

We disagree. The Immigration Judge’s holding effectively means that no

alien under the age of 14 could ever be deported in absentia (at least absent

the assignment of an adult guardian to each such alien). Even if the minor

alien received proper notice of the hearing, no one would bear the

responsibility for the alien’s subsequent appearance, a burden that could also

not be placed upon the minor alien. If that were Congress’s intent, section

240(b)(5)(A) of the Act, 8 U.S.C. § 1229a(b)(5)(A) (2000), the statute that

mandates entry of an in absentia order when an alien fails to appear, would

presumably contain such an exception.

Contrary to the Immigration Judge, we believe it is implicit in the statute

and regulations dealing with notice that an adult relative who receives notice

on behalf of a minor alien bears the responsibility to assure that the minor

appears for the hearing, as required.7 See Matter of Amaya, supra, at 585

(observing that the purpose of the regulation at 8 C.F.R. § 103.5a(c)(2)(ii) is

to provide for service upon the “person or persons who are most likely to be

responsible for ensuring that an alien appears before the Immigration Court

at the scheduled time”); cf. also Gonzalez v. Reno, 212 F.3d 1338, 1348-54

(11th Cir.), cert. denied, 530 U.S. 1270 (2000). Accordingly, we conclude

that the respondent was properly notified of her hearing, through mailing to the

address provided by her father, with whom she was residing.

IV. CONCLUSION

We find that the respondent’s removability was established by the Form

I-213 submitted into evidence by the Service. We find further that she was

properly notified of her hearing. Accordingly, we conclude that the

Immigration Judge erred in terminating removal proceedings and in failing to

7

See also 8 C.F.R. § 236.3(b)(3) (2000), which provides that where a parent is detained or

outside the United States, a juvenile may be released to another person designated by the

parent as able to care for the juvenile, if the person executes an agreement to ensure the

juvenile’s presence at all future proceedings. This regulation implies that the parent also bears

such an obligation.

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enter an in absentia order of removal. The following orders will therefore be

entered.

ORDER: The motion to reconsider en banc by the Immigration and

Naturalization Service is granted, the appeal is sustained, and our prior

decision in this matter is vacated.

FURTHER ORDER: The decision of the Immigration Judge terminating

proceedings against the respondent is vacated, and the record is remanded for

further proceedings consistent with the foregoing opinion and for the entry of

a new decision.

DISSENTING OPINION: Paul Wickham Schmidt, Board Member, in

which John Guendelsberger, Anthony C. Moscato, Noel Ann Brennan,

Cecelia M. Espenoza, and Juan P. Osuna, Board Members, joined

I respectfully dissent.

I agree with the Immigration Judge and our prior panel decision that the

removal proceedings against this unrepresented minor respondent should be

terminated and that the appeal of the Immigration and Naturalization Service

should accordingly be dismissed.

I. ISSUES

The two issues in this case are (1) whether the Record of

Deportable/Inadmissible Alien (Form I-213) is clear, unequivocal, and

convincing evidence of the respondent’s removability; and (2) whether notice

mailed to the alleged father of this child is legally sufficient. Like the

Immigration Judge, I answer both of these questions negatively.

II. FACTS

The majority adequately sets forth the facts. The most important

undisputed facts are as follows: (1) the respondent was 8 years old at the

time of her apprehension by the Border Patrol at the Trailways bus station in

Brownsville, Texas; (2) the respondent has never been in contact with the

Immigration Court; (3) the respondent is unrepresented; (4) the Form I-213

prepared by the Border Patrol agent at the time of apprehension is the sole

evidence of this minor respondent’s removability; (5) the Form I-213 was

prepared from information about this child furnished by “Carlos,” who

purported to be her father; (6) neither Carlos nor the Border Patrol agent

appeared to testify before the Immigration Judge.

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III. LAW

The relevant case on the adequacy of the Form I-213 is Matter of PonceHernandez, 22 I&N Dec. 784 (BIA 1999). There, we held that in the absence

of reason to doubt the reliability of the information contained in the Form

I-213, that document is presumed to be accurate and can constitute clear,

unequivocal, and convincing evidence of deportability, even in a case

involving an unrepresented minor respondent under the age of 16.

With respect to notice, we have found notice to be adequate for a minor

where there is clear, unequivocal, and convincing evidence that notice is

served on “the person or persons who are most likely to be responsible for

ensuring that [the minor] alien appears before the Immigration Court at the

scheduled time.” Matter of Amaya, 21 I&N Dec. 583, 585 (BIA 1996).

IV. ANALYSIS

A. Removability

Applying Matter of Ponce-Hernandez, supra, to this respondent’s

situation, the Immigration Judge found that there was reason to doubt the

reliability of this particular Form I-213. Consequently, the Immigration Judge

concluded that the Service had not satisfied its burden of establishing this

child’s removability by clear, unequivocal, and convincing evidence. See

section 240(b)(5)(A) of the Immigration and Nationality Act, 8 U.S.C.

§ 1229a(b)(5)(A) (2000).

Significantly, the Immigration Judge (and our prior panel decision)

recognized the important differences between this respondent and the

respondent in Ponce-Hernandez. The respondent in Ponce-Hernandez was

much older—15 years old, as opposed to 8 years old. He provided the

information on alienage and deportability directly to the agent, rather than

having it provided by a third party. Finally, unlike our minor respondent, the

15-year-old respondent in Ponce-Hernandez was personally served with the

charging document, a permissible procedure under 8 C.F.R. § 103.5a(c)(2)(ii)

(2002) when dealing with respondents over 14 years of age.

A number of significant factors support the Immigration Judge’s conclusion

that this Form I-213 is not “clear, unequivocal, and convincing” evidence of

removability. First, this respondent was only 8 years old. Second, she never

appeared before the Immigration Court. Third, there was no attorney or other

legal representative of this minor respondent present at the hearing to protect

her rights. Fourth, the information on the Form I-213 was obtained from a

third party, Carlos. Fifth, there is no proof that Carlos actually is this

respondent’s father or that he is otherwise related to, or responsible for the

well-being of, this child. Sixth, Carlos did not appear to testify before the

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Immigration Judge. Seventh, the Border Patrol agent also did not appear to

testify. Eighth, Carlos had a logical and plausible motivation for

misrepresenting his relationship with this minor respondent, i.e., to increase

his own chances of release from custody. Ninth, the overall circumstances

of apprehension while the subjects were in transit at a Trailways bus station

are more likely to produce inaccurate information than when the apprehension

takes place in a more stable community setting.

In the overall circumstances of this case, I would defer to the Immigration

Judge’s reasonable application of Ponce-Hernandez to find that the

presumption of accuracy of the Form I-213 was rebutted. I therefore would

affirm her conclusion that the Service did not establish this minor

respondent’s removability by clear, unequivocal, and convincing evidence.

The majority claims that not every Form I-213 ultimately must be found

reliable. But, given the majority’s application of Ponce-Hernandez in this

case, I do not see when, if ever, a Form I-213 would not be conclusive

evidence in an in absentia case. The majority effectively converts the

rebuttable presumption of Ponce-Hernandez into an irrebuttable presumption

of removability in in absentia cases.

B. Notice

There is no evidence to suggest that this minor respondent had actual

notice of her scheduled removal hearing. I also agree with the Immigration

Judge that the evidence falls short of the clear, unequivocal, and convincing

standard required to show that a person most likely to ensure the respondent’s

presence at her hearing was properly served with notice. See Matter of

Amaya, supra. We know very little about Carlos and do not even know for

sure that he received notice on behalf of this child or that he furnished the

Service with an accurate address.

V. CONCLUSION

By the majority’s action, we now enter a final order of removal against a

young child who has never been in contact with the Immigration Court system.

We base this significant adverse decision on hearsay information provided by

her purported father, who also has never been in contact with the Immigration

Court. The sole evidence supporting our decision is a form filled out by a

Border Patrol agent who never appeared before the Immigration Court to

testify.

We are not properly applying our precedents in Ponce-Hernandez and

Amaya to this minor respondent. We also fail in our statutory responsibility

to ensure that there is clear, unequivocal, and convincing evidence of proper

notice and removability. Section 240(b)(5)(A) of the Act.

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I would uphold the Immigration Judge’s decision terminating proceedings

and approve the action of our prior panel dismissing the Service’s appeal.

Therefore, I would deny the Service’s motion for reconsideration.

Accordingly, I respectfully dissent.

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