UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT Hearing Conducted By:
NEW YORK, NEW YORK Telephone Conference/
Video Conference

FILE NUMBER: A )
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IN THE MATTER OF ) IN REMOVAL PROCEEDINGS
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Respondent )

CHARGE: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("the

Act")-Present without being admitted or paroled

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE DHS:

Jason Cade, Esquire David Shteingart, Assistant Chief Counsel

WRITTEN DECISION OF THE IMMIGRATION JUDGE

The respondent is a 20-year-old female who is a native and citizen of EI Salvador. The
Department of Homeland Security (DHS) has brought these removal proceedings against the
respondent under the authority of section 240 of the Act. Proceedings were commenced with the filing
of the Notice to Appear (NTA) with the Immigration Court in Phoenix on September 16,2004. See
Exhibit 1. Venue was subsequently changed to the Court in New York. The DHS concedes in this
case that a Form 1-770 was not provided to the respondent when she was placed in removal
proceedings, although the respondent was 17 years old and not accompanied by an adult when she
was apprehended by DHS officers on September 7,2004. 1

At 8 C.F.R. § 1236.3(h), the regulations provide as follows: "When a juvenile alien is

apprehended, he or she must be given a Form 1-770, Notice of Rights and Disposition" [emphasis
added]. The respondent has filed a motion to suppress the contents of the Form 1-213 as evidence of
her inadmissibility, contending inter alia that the DHS failed to comply with the foregoing regulation
when it initiated removal proceedings in this matter.

IThe respondent was traveling with her then 16-year-old cousin, Maria D.M RI_
(A98-428-902). The respondent's cousin was ordered removed in absentia following her failure to
attend a removal hearing on today's date.

1
 The DHS has opposed the motion, replying that the respondent was given other notice of her
rights in the removal proceedings, including a Form I':'848A, "Notice of Rights for Salvadorans" in the
Spanish language. DHS further contends that it has independent evidence of the respondent's
inadmissibility and that, in accordance with Matter of Hernandez, 21 I&N Dec. 224 (BIA 1996), the
Court should take steps short of terminating the removal proceedings to cure the failure to provide the
respondent with the Form 1-770.

Whether the proceedings should be terminated for failure to provide the Form 1-770 to an
unaccompanied juvenile/ in violation of the mandatory language at 8 C.F;R. § 1236.3(h), appears to
be an issue of first impression; In Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1993), the Second
Circuit reiterated its rule that "when a regulation is promulgated to protect a fundamental right ·derived
from the Constitution or a federal statute, and the [DHS] fails to adhere to it, the challenged ...
proceeding is invalid and a remand to the agency is required. This may well be so even when the
regulation requires more than would the specific provision of the Constitution or statute that is the
source of the right." See also Montilla v. INS, 926 F.2d 162 (2d Cir. 1991).

The requirement that the DHS issue a Form 1-770 when apprehending an unaccompanied
juvenile appears to be part of the statutory and regulatory scheme of insuring that the juvenile can
establish contact with a parent, legal guardian, or adult relative in the United States. See section 236(a)
of the Act; 8 C.F.R. § 1236.3. Strict compliance with 8 C.F.R. § 1236.3(h) is necessary to protect
the unique interests of juveniles in removal proceedings. See Matter of Ponce-Hernandez, 22 I&N
Dec. 784 (BIA 1999).

Under the Second Circuit case law discussed above, the violation of the DHS regulation
appears to render the removal proceedings inValid, even without a showing of prejUdice. Accordingly,
no purpose would be served in issuing an order of removal based upon the NTA and Form 1-213
dated September 7, 2004. Accordingly, the Court will enter the following order.

ORDER: The instant removal proceedings are hereby terminated.

APPEAL RIGHTS: Both parties have the right to appeal the decision in this case. Any appeal is due
at the Board of Immigration Appeals on or before 30 calendar days from the date of service of this
decision.

DATE: ~ ~ k-r (,1 ;Joo-;

Jeffrey L. Romig
U.S. Immigration Judge

. 2A "juvenile" is defined as "an alien under the age of 18 years." 8 C.F.R. § 1236.3(a).