W-A-F-C-

Cite as 26 I&N Dec. 880 (BIA 2016) 	Interim Decision #3881
880
Matter of W-A-F-C-, Respondent
Decided December 16, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Where the Department of Homeland Security seeks to re-serve a respondent to effect
proper service of a notice to appear that was defective under the regulatory requirements
for serving minors under the age of 14, a continuance should be granted for that purpose.
Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013), followed.
FOR RESPONDENT: Cecil C. Harrigan, Esquire, Washington, D.C.
FOR THE DEPARTMENT OF HOMELAND SECURITY: 	Nicholas J. Bolzman,
Assistant Chief Counsel
BEFORE: 	Board 	Panel: 	GREER 	and 	KENDALL 	CLARK, 	Board 	Members;
O’HERRON, Temporary Board Member.
GREER, Board Member:
In a decision dated March 21, 2016, an Immigration Judge terminated
the removal proceedings against the minor respondent after determining
that the Department of Homeland Security (“DHS”) had not properly
served him with the notice to appear. 	The DHS has appealed from that
decision. Although the notice to appear was not served in accordance with
the regulatory requirements for serving minors under the age of 14, we find
that the DHS should have another opportunity to effect proper service. The
decision of the Immigration Judge will therefore be vacated, the removal
proceedings will be reinstated, and the record will be remanded to the
Immigration Judge for further proceedings.
The respondent is a native and citizen of El Salvador who was 12 years
old when he entered the United States on or about June 16, 2015. 	It was
determined that he had entered as an “unaccompanied alien child.” 	On the
same day the respondent entered the country, the DHS issued a notice to
appear, charging him with inadmissibility under section 212(a)(6)(A)(i) of
the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2012), as
an alien present in the United States without being admitted or paroled.
At a removal hearing on February 17, 2016, the respondent moved to
terminate the proceedings, asserting that service of the notice to appear was
deficient. 	The DHS opposed the respondent’s motion. 	The Immigration

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Judge granted the motion and terminated the proceedings after concluding
that the DHS had not complied with the regulatory requirements for serving
the notice to appear on a minor who is under the age of 14.
On appeal, the DHS does not dispute that its service of the notice to
appear was deficient under the regulations. 	Instead, it argues that the
Immigration Judge erred in terminating proceedings without first requiring
the respondent to demonstrate that he was prejudiced by the manner in
which the notice to appear was served. 	The DHS also contends that any
defect in service was cured when it re-served the respondent’s mother and
counsel 	with 	the 	notice 	to 	appear. 	The 	respondent 	agrees 	with 	the
Immigration Judge’s decision to terminate proceedings.
It is undisputed that the DHS did not properly serve the notice to appear
on the respondent, who was 12 years old when service was attempted.
According to 8 C.F.R. § 103.8(c)(2)(ii) (2016), “[I]n the case of a minor
under 14 years of age, service [of the notice to appear] shall be made upon
the person with whom the . . . minor resides.”1 The DHS should therefore
have served the notice to appear on the person with whom the respondent
resided at the time of service.2 See id.; see also Matter of E-S-I-, 26 I&N
Dec. 136, 141 (BIA 2013) (“[I]f an alien is detained—in DHS custody or in
any other type of institution—service on the head of the institution or his or
her delegate satisfies the regulation.”); Matter of Amaya, 21 I&N Dec. 583,
585 (BIA 1996) (finding that service “upon the director of the IES facility
in which the [12-year-old] respondent was detained” complied with the
regulatory requirement that “service shall be made upon the person with
whom . . . the minor resides” (quoting 8 C.F.R. § 103.5a(c)(2)(ii) (1996))).
1 The regulation further provides that “whenever possible, service shall also be made on
the near relative, guardian, committee, or friend.” 	8 C.F.R. § 103.8(c)(2)(ii). 	With
respect to minors served when they were between the ages of 14 and 18, the regulations
do not require that the notice to appear also be served on an adult with responsibility for
the minor. 	See Matter of Cubor, 25 I&N Dec. 470, 472−73 (BIA 2011). 	The United
States Court of Appeals for the Ninth Circuit has held that if an alien under the age of
18 is released into the custody of an adult, the notice to appear should be served on that
adult as well as the minor alien. Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1157–62 (9th
Cir. 2004). 	However, we declined to follow that ruling in Matter of Cubor, relying
instead on the contrary decisions of other circuit courts. Moreover, this case involves the
requirements for serving a minor under the age of 14 and arises within the jurisdiction of
the Fourth Circuit.
2 The Immigration Judge correctly noted that it is unclear on this record where the
respondent resided when the DHS attempted service on June 16, 2015. 	The notice to
appear does not list an address for the respondent, and a form from the Office of Refugee
Resettlement in the Department of Health and Human Services merely reflects that the
respondent was located at “IES Driscoll” when he was released from custody on July 8,
2015—several weeks after the notice to appear was allegedly served.

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While the regulations do not explicitly require service on the parent or
parents of an alien in all circumstances, they do require such service, if
possible, “when it appears that the minor child will be residing with her
parents in this country.” 	Matter of Mejia-Andino, 23 I&N Dec. 533, 536
(BIA 2002). 	In this case, there is no signature on the notice to appear
reflecting that service was made on either the respondent or another person.
Because the DHS’s service of the notice to appear was deficient, the
question before us is whether it should have another opportunity to effect
proper service. 	The DHS asserts that the Immigration Judge’s decision
does not recognize that it cured the defective service by mailing a copy of
the notice to appear to the respondent’s counsel and mother in February
2016—2 days after the respondent first raised the issue of improper service.
The respondent does not address whether his mother or his counsel
received the notice to appear in his appellate brief. 	However, the record
reflects that the DHS offered to personally serve the respondent’s parent at
his removal hearing in February 2016. 	Because the DHS made requests
and efforts to re-serve the notice to appear and the respondent appeared
with 	counsel 	at 	both 	of 	his 	master 	calendar 	hearings, 	this 	case 	is
distinguishable from Matter of Mejia-Andino. 	That decision involved
service of the notice to appear on a 7-year-old minor who did not appear at
two 	hearings. 	We 	upheld 	the 	Immigration 	Judge’s 	termination 	of
proceedings because there was no indication that the DHS made any effort
to serve the notice to appear on the respondent’s parents, who apparently
lived in the United States. 	Matter of Mejia-Andino, 23 I&N Dec. at
535−37.
Considering 	the 	circumstances 	of 	this 	case, 	we 	conclude 	that 	the
Immigration Judge should have granted a continuance to give the DHS an
opportunity to effect proper service. 	In Matter of E-S-I-, 26 I&N Dec. at
145, which addressed the requirements for service on individuals who lack
mental competency, we stated that “[i]f the DHS did not properly serve the
respondent where indicia of incompetency were either manifest or arose
during a master calendar hearing that was held shortly after service of the
notice to appear, the Immigration Judge should grant a continuance to
give the DHS time to effect proper service.” The Immigration Judge in this
case distinguished Matter of E-S-I- because, at the time of service, the
DHS knew the respondent’s age, which is not a “variable condition” like
competency. 	Matter of E-S-I-, 26 I&N Dec. at 144. 	He therefore decided
that the DHS should not be afforded an opportunity to re-serve the notice to
appear on the respondent.
We are unpersuaded by this reasoning. 	In Matter of E-S-I- we noted
that the DHS was aware of indicia of the respondent’s incompetency at the
time of service since the respondent in that case had been transferred into

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DHS custody from a psychiatric hospital. 	Id. 	at 137, 144–45. 	We
nevertheless 	held 	that 	remand 	was 	warranted 	because 	proper 	service
had not been established, stating that the Immigration Judge should grant
the DHS a continuance to properly serve the respondent on remand, if
appropriate. 	Id. at 145–46; see also Matter of Hernandez, 21 I&N Dec.
224, 228 (BIA 1996) (holding that an Immigration Judge can and should
take corrective action short of termination when the Government violates
its regulations regarding service of the charging document). 	See generally
Matter of M-J-K-, 26 I&N Dec. 773, 777–78 (BIA 2016) (discussing
continuances for service of the notice to appear under Matter of E-S-I-).
Considering the circumstances in this case, we conclude that the DHS
should be afforded another opportunity to effect proper service under
Matter of E-S-I-. 	We will therefore vacate the Immigration 	Judge’s
decision, reinstate the removal proceedings, and remand the record to the
Immigration Judge. 	On remand, the Immigration Judge should assess
whether 	the 	DHS 	re-served 	the 	notice 	to 	appear 	in 	accordance 	with
8 C.F.R. § 103.8(c)(2)(ii) and, if warranted, determine whether the DHS
should be permitted to re-serve the notice to appear.3
ORDER: 	The decision of the Immigration Judge is vacated, and the
removal proceedings are reinstated.
FURTHER ORDER: 	The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.
3 Given our disposition of this case, we need not reach the DHS’s argument that the
improper service of the notice to appear did not prejudice the respondent.