U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office of the Clerk
5/07 Leesburg Pike, Suite 2000
Falls Church. Virginia 22041

Date of this notice: 12/9/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DoYUtL C

(1/\A)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Herron, Margaret M
Greer, Anne J.
Neal, David L

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: B-N-G-M-, AXXX XXX 323 (BIA Dec. 9, 2015)

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OHS/ICE Office of Chief Counsel - NYC

Ziesemer, Jodi
Catholic Charities Immigration and Refugee 26 Federal Plaza, 11th Floor
Service
New York, NY 10278
80 Maiden Lane, 13th Floor
New York, NY 10038

"

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 22041

File: 323 - New York, NY

Date:

DEC - 9 2015

In re:

APPEAL
ON BEHALF OF RESPONDENT: Jodi Ziesemer, Esquire
ON BEHALF OF OHS: Gregor McConnell
Assistant Chief Counsel
CHARGE:
Notice: Sec.

212(a)(6)(A)(i), I&N Act [8 U.S.C. l l82(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Termination

The Department of Homeland Security ("OHS") appeals from the Immigration Judge's
April 21, 2015, decision terminating removal proceedings. The record will be remanded.
We review findings of fact, including credibility findings and determinations as to the
likelihood of future events, under the "clearly erroneous" standard.
See 8 C.F.R.
1003.l(d)(3)(i); Matter of Z-Z-0-, 26 l&N Dec. 586 (BIA 2015); Matter of S-H-, 23 l&N
Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all other issues
de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
The Immigration Judge terminated removal proceedings, without prejudice, upon concluding
that there was no evidence of proper service of the Notice to Appear (Form 1-862), dated
March 25, 2014 (Order of the Immigration Judge, issued April 21, 2015; Exh. I). On appeal, the
DHS argues that the Immigration Judge erred in granting the respondent's motion to terminate
proceedings because it contends that the Notice to Appear was properly served on the
respondent's grandfather (Notice of Appeal at 2). The DHS also argues that, even assuming that
the Notice to Appear was improperly served, the respondent was not prejudiced or denied any
fundamental right, such that the termination of removal proceedings would be justified
(Notice of Appeal at 2). Additionally, the DHS asserts that it should have been permitted to
re-serve the Notice to Appear (Notice to Appear at 2).
Upon review of the record, we will affirm the Immigration Judge's determination that proper
service of the Notice to Appear has not been established (Order of the Immigration Judge, issued
April 21, 2015). The parties do not dispute that the respondent was under the age of 14 at the

Cite as: B-N-G-M-, AXXX XXX 323 (BIA Dec. 9, 2015)

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IN REMOVAL PROCEEDINGS

323

Although we conclude that service of the Notice to Appear was not properly effected, we
agree with the DHS's assertion that it should have been allowed to re-serve the Notice to Appear
(Notice of Appeal at 2; DHS Motion to Reconsider, filed April 27, 2015, at 7). To that end, the
record reflects that the DHS indicated an intent to re-serve the Notice to Appear at the final
hearing before the Immigration Judge, but was not provided an opportunity to do so (Tr. at I 0).
We recognize the respondent's appellate contention that the OHS had ample time and
opportunity to re-serve the Notice to Appear; however, the record reflects that the respondent,
through counsel, initially acknowledged that service of the Notice to Appear was proper on
March 18, 2015, at the hearing prior to the Immigration Judge's decision to terminate removal
proceedings (Tr. at 5; Respondent's Brief at 5).2
Therefore, we are not persuaded that termination was required for purposes of ensuring
fairness and efficiency (Respondent's Brief at 5). Rather, under the circumstances presented, we
conclude that the Immigration Judge should have considered the DHS's request to re-serve the
Notice to Appear in order to effect proper service (Tr. at I 0). See, e.g., Matter of E-S-1-, supra,
at 145 (indicating that, after removal proceedings have commenced, an Immigration Judge may
"grant a continuance to give the DHS time to effect proper service" of a Notice to Appear).
In light of the foregoing, we will vacate the Immigration Judge's April 21, 2015, decision,
reinstate the removal proceedings, and remand the record to the Immigration Judge to allow the
DHS the opportunity to re-serve the Notice to Appear in accordance with 8 C.F.R.
103.8(c)(2)(ii) and applicable authority interpreting this regulatory provision. 3
1

The DHS's motion to reconsider was filed before the Immigration Judge, but the record does
not reflect that the Immigration Judge had rendered a decision on the motion by the time that the
record was forwarded to the Board due to the pending appeal.
2

Despite the assertions of counsel, there is no indication from the evidentiary record that the
Immigration Judge advised the DHS to re-serve the Notice to Appear prior to the final hearing
(DHS Motion to Reconsider, filed April 27, 2015, at 3; Respondent's Brief at 5).
3

Given our disposition of this matter, we need not address the DHS's argument that the
respondent did not suffer prejudice and was not denied any fundamental right as a result of the
improper service of the Notice to Appear (Notice of Appeal at 2).

2
Cite as: B-N-G-M-, AXXX XXX 323 (BIA Dec. 9, 2015)

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time of service of the Notice to Appear (DHS Motion to Reconsider, filed April 27, 2015, at 2;
Respondent's Brief at 2, 4). 1 Even assuming that the individual who signed the Notice to Appear
is the respondent's grandfather, we conclude that service of the Notice to Appear was not
properly effected in accordance with the pertinent regulations, as the parties agree that the
respondent did not reside with him at the time of service, but instead, was in the custody of the
Office of Refugee Resettlement (Exh. l; DHS Motion to Reconsider, filed April 27, 2015, at 2;
Respondent's Brief at 1-2). See 8 C.F.R. 103.8(c)(2)(ii) (stating that "service shall be made
upon the person with whom the .. . minor resides"); cf Matter ofE-S-1-, 26 l&N Dec. 136, 141
(BIA 2013) ("[l]f an alien is ... 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.").

323
See, e.g. ., Matter ofMejia-Andino, 23 I&N Dec. 533, 536 (BIA 2002) (concluding that, "when it
appears that the minor child will be residing with her parents in this country, ... the regulation
requires service on the parents, whenever possible"). Accordingly, the following orders will be
entered.

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
Cite as: B-N-G-M-, AXXX XXX 323 (BIA Dec. 9, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

ORDER: The decision of the Immigration Judge is vacated, and the removal proceedings are
reinstated.

(
U.S. DEPARTMENT-OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
26 FEDERAL PLZ, 12TH FL RM1237
NEW YORK, NY 10278

RESPONDENT

Case No:

323

IN REMOVAL PROCEEDINGS
ORDER OF THE IMMIGRATION JUDGE

After considering the facts and circumstances of this case and as there
is no opposition from the parties, it is HEREBY ORDERED that these
proceedings be terminated with ([ 1 thout prejudice.:,
NTA dated: Mar 25, 2014.

BARBARA A. NELSON
Immigration Judge
Date: Apr 21, 2015
Appeal Waived/Reserved by A/I: NO APPEAL
Appeal Due Date:

CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY: MAIL (M) PERSONAL SERVICE
(P)
en
ATT/REP
!EN c/o Custodial Offi
TO: [] ALIEN

DATE:
/-
BY: COURT STAFF
Attachments: [ ] EOIR-33 [] EOIR-28 [] Legal Services List
Form EOIR 35 - 6T (Termination)

] Other

Immigrant & Refugee Appellate Center, LLC | www.irac.net

In the Matter of:

,B_N_