Luz Llapa-Sinchi v. Alberto Gonzales ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1774
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Luz Llapa-Sinchi, *
*
Petitioner, *
* Petition for Review from
v. * the Board of Immigration Appeals.
*
Michael B. Mukasey, *
Attorney General of the United States, *
*
Respondent. *
*
*
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Submitted: December 10, 2007
Filed: March 28, 2008
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Before BYE, JOHN R. GIBSON, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
Luz Llapa-Sinchi, who entered the United States illegally and was ordered
deportable in absentia, petitions this court to review a Board of Immigration Appeals’
decision finding her ineligible for a suspension of deportation. She is eligible for a
suspension of deportation only if she was properly served with notice of her
deportation hearing. The government served Llapa-Sinchi with notice, but she was
only fourteen years old at the time. The government did not serve additional notice
on a responsible adult. The crux of the dispute is whether the government’s service
on Llapa-Sinchi alone was proper service and consistent with due process. The BIA
determined the government properly served Llapa-Sinchi with notice. We affirm.
I. Background
Llapa-Sinchi, born in 1980, is a citizen and national of Ecuador. She illegally
entered the United States in 1995, when she was fourteen years old. On the same day
she entered the country, the government served her in Arizona with an Order To Show
Cause that set forth the charge of deportability because she entered without inspection.
The Order To Show Cause was in both English and Spanish, and the document
indicated that a government official reviewed the document with Llapa-Sinchi in both
languages. The government did not serve anyone else with the Order To Show Cause.
The government released her to a local legal-assistance organization, which contacted
her brother-in-law, who lived in Minnesota. He wired money, enabling Llapa-Sinchi
to travel to Minnesota. Two months later, Llapa-Sinchi’s brother-in-law received a
letter offering a change of venue for the hearing. He signed it, and an immigration
court approved a change of venue to the jurisdiction of Chicago, Illinois, sitting in
Bloomington, Minnesota. Llapa-Sinchi failed to appear for her hearing, and an
immigration judge ordered her deported in absentia.
Eight years later, immigration officials arrested Llapa-Sinchi. She filed a
motion to reopen her petition. At the time Llapa-Sinchi was served, immigration law
allowed the Attorney General to suspend an individual’s deportation and adjust his or
her status to that of a lawful permanent resident. 8 U.S.C. § 1254(a)(1) (1994).1 With
certain exceptions not applicable here, the Attorney General could suspend the
deportation of an individual only if the individual had been “physically present in the
United States for a continuous period of not less than seven years,” if the individual
was “of good moral character” during this time, and if “deportation would . . . result
1
This statute has since been repealed.
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in extreme hardship” to the individual, “or to his spouse, parent, or child, who is a
citizen of the United States or an alien lawfully admitted for permanent residence.”
Id.; see Tang v. INS, 223 F.3d 713, 715 (8th Cir. 2000) (citing provision). The period
of continuous physical presence ended, however, when the individual was properly
served with a notice to appear for deportation proceedings. 8 U.S.C. § 1229b(d)(1);
see Tang, 223 F.3d at 716, 719 (explaining the stop-time provision, enacted in 1996,
and holding it applies retroactively).
The BIA determined that Llapa-Sinchi “deserved a favorable exercise of [its]
discretion” to grant a suspension of deportation. However, the BIA determined Llapa-
Sinchi was ineligible for a suspension of deportation; she did not establish the
requisite period of physical presence because the period ended when she was properly
served with notice to appear for deportation proceedings on the day she entered the
country.
The BIA determined Llapa-Sinchi’s service was proper and explained 8 C.F.R.
§ 103.5a(c)(2)(ii) requires service on an alternative party only for minors younger than
fourteen years old. This regulation specifically provides that service “shall be made
upon the person with whom . . . the minor resides” when the minor is younger than
fourteen years old. 8 C.F.R. § 103.5a(c)(2)(ii). The regulations are silent regarding
service for minors fourteen years old and older. Thus, the BIA reasoned, those
between fourteen and eighteen years old are governed by the general notice provision,
which requires that notice “shall be given in person to the alien.” 8 U.S.C. §
1252b(a)(1) (1994).2
2
This statute has since been repealed.
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Llapa-Sinchi argues she was not properly served with notice for two reasons.3
She alleges the government violated her due-process rights because it served only her,
as a minor, and not an adult. She also alleges the BIA and this court are bound by a
Ninth Circuit case holding that service to minor aliens alone is insufficient for proper
notice.
II. Discussion
“[W]e review an agency’s legal determinations de novo, according substantial
deference to the agency’s interpretation of the statutes and regulations it administers.”
Tang, 223 F.3d at 718–19 (quotation omitted). We thus review de novo the “the
BIA’s conclusion that the ‘stop-time’ provision . . . applies to [the] [p]etitioner.” Id.
at 719.
The BIA determined the government properly served Llapa-Sinchi even though
it did not serve a responsible adult, because she was fourteen years old or older at the
time and service was thus governed by the general notice provision. See 8 U.S.C. §
1254b(a)(1) (1994). Only if the minor is younger than fourteen years old must the
government also serve an adult. 8 C.F.R. § 103.5a(c)(2). We defer to the BIA’s
reasonable interpretation of those regulations and hold that the government properly
served Llapa-Sinchi with notice.
We also hold 8 C.F.R. § 103.5a(c)(2)(ii) does not violate the due process clause.
We review constitutional issues de novo. See Coal. for Fair and Equitable Reg. of
Docks on the Lake of the Ozarks v. Fed. Energy Reg. Comm’n, 297 F.3d 771, 778
(8th Cir. 2002) (noting that although “we accord substantial deference to an agency’s
3
In her brief, Llapa-Sinchi also argued the government was equitably estopped
from arguing she was properly served. In oral arguments, however, Llapa-Sinchi
waived this argument. Therefore, we do not address it.
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interpretation of its own regulation, . . . we review de novo constitutional questions,
such as . . . due process claims”).
Llapa-Sinchi has not argued that particular facts surrounding her service of
process caused it to run afoul of due process; her arguments are based only on her
status as a minor. We decline Llapa-Sinchi’s invitation to adopt a per se rule that
service to minors alone always violates the constitution.
Minors can be responsible for their own legal status and can waive their
constitutional rights. Courts have repeatedly held this, and statutes have long allowed
it. The Supreme Court has held minors can be responsible for waiving their right to
appeal deportation and custody determinations. Reno v. Flores, 507 U.S. 292,
308–09 (1993) (upholding, against a facial challenge, a law allowing all minors to
waive their right to appeal those determinations). The Court said it was unwilling to
presume all minors are “too young or too ignorant to exercise that right.” Id. A
seventeen year old can waive rights guaranteed by Miranda v. Arizona, 384 U.S. 436,
444 (1966), even if his parents are present and not adequately advised of the rights.
United States v. White Bear, 668 F.2d 409, 411–12 (8th Cir. 1982). A sixteen year
old can waive his right to an appeal, Little v. Lockhart, 868 F.2d 989, 992 (8th Cir.
1989), and a fifteen year old can waive his right to a jury trial, Cotton v. United States,
446 F.2d 107, 110 (8th Cir. 1971). Many state laws have long allowed personal
service of a summons on minors as young as fourteen years old. See Mo. Sup. Ct. R.
54.13 (allowing personal service on any individual); Minn. R. Civ. P. 4.03(a)
(allowing personal service on fourteen year olds); Neb. Rev. Stat. § 25-508.01(1)
(same); Ark. R. Civ. P. 4(d)(2) (same); N.D. R. Civ. P. 4(d)(2)(A) (same). These
cases and statutes indicate minors can be required to navigate through the justice
system and make decisions affecting their rights without running afoul of due process.
Likewise, without further evidence that the service in this case raised constitutional
problems, it is not inconsistent with due process for Llapa-Sinchi to be the sole
recipient of notice.
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The Ninth Circuit interpreted 8 C.F.R. 103.5a(c)(2)(ii) differently to avoid
“serious constitutional due process questions.” Flores-Chavez v. Ashcroft, 362 F.3d
1150, 1162 (9th Cir. 2004). The Ninth Circuit looked to another provision of the
regulations, 8 C.F.R. § 242.24, which requires that the government release juvenile
aliens to a relative or, if the relatives and those appointed by relatives are unavailable,
to an adult “who executes an agreement to care for the juvenile’s well-being and to
ensure the juvenile’s presence at all future proceedings before the INS or an
immigration judge.” 8 C.F.R. § 242.24(b)(4) (1994). The court held it would be
inconsistent for the regulations to require that minors older than fourteen be released
to a competent adult who takes responsibility for the minor but to not require that the
adult be served with notice. Flores-Chavez, 362 F.3d at 1163.
Unlike the Ninth Circuit, we do not find the regulations to be inconsistent, and
we do not find the Ninth Circuit’s reasoning entirely persuasive. The purpose of the
notice provision is to let individuals know the details of their legal proceedings. The
purpose of the release provision, however, is not to provide knowledge, but to provide
assistance to minors in a foreign land, perhaps for the first time. It is therefore logical
for the regulations to provide that minors entering the country illegally can be
responsible for receiving notice regarding their court proceedings and yet also provide
that minors may need assistance from adults to obtain basic necessities.
Contrary to Llapa-Sinchi’s arguments, we conclude we are not bound by Ninth
Circuit case law interpreting BIA regulations. In support of her argument, Llapa-
Sinchi cites cases in which courts considered whether to apply the law of another
circuit in reviewing BIA opinions. In these cases, courts considered this
issue—whether to apply the law of another circuit—largely because the venue
provision in effect at the time made it unclear to the BIA which circuit would be
reviewing its decision. See Rosendo-Ramirez v. INS, 32 F.3d 1085, 1094 (7th Cir.
1994) (noting the venue provisions “require the BIA to live with uncertainty of which
court may review its decisions, and us to live with the strange situation of being asked
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to review a case that has applied another circuit’s law); Morel v. INS, 90 F.3d 833,
837 (3d Cir. 1996) (reversed on other grounds) (noting the venue statute provides
venue is proper in two circuits); Maldonado-Cruz v. INS, 883 F.2d 788, 790–91 (9th
Cir. 1989) (abrogated on other grounds) (same). Under the previous venue provision,
BIA decisions could be reviewed either in the circuit where the administrative
proceedings were held or where the petitioner resided. 8 U.S.C. § 1105a(a)(2) (1994).
However, the venue provision is no longer unclear, as the new provision provides that
venue is proper only in one circuit—where the administrative hearings were
completed. 8 U.S.C. § 1252(2)(b)(2). Thus, the primary justification for considering
whether to apply the law of another circuit no longer exists.
Furthermore, in none of these cases did a court hold it was bound by another
circuit’s law. See Rosendo-Ramirez, 32 F.3d at 1094 (“[W]e are obliged to review the
BIA’s decision in accordance with our own law.”); Morel, 90 F.3d at 836–37
(reversed on other grounds) (“[A]ll of the other appellate courts confronted with a
similar situation have applied the law of their own circuits.”); Maldonado-Cruz, 883
F.2d at 790–91 (abrogated on other grounds) (determining Ninth Circuit law should
apply because it would prevent the INS from forum shopping and because the
petitioner did not have any contacts with the other circuit where venue was
appropriate). Neither this court nor the BIA in this case is bound by Ninth Circuit
precedent.
III. Conclusion
Because Llapa-Sinchi was properly served with notice, the BIA correctly found
her ineligible for a suspension of deportation, and we deny her petition for review.
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BYE, Circuit Judge, dissenting.
I respectfully dissent. I would apply the law of the Ninth Circuit in determining
whether the service of process upon Luz Llapa-Sinchi, which occurred in Arizona,
was valid and proper. Under Ninth Circuit law, the service of process upon her alone
when she was fourteen years old would be invalid, and she would be eligible for
suspension of deportation. See Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1157-63
(9th Cir. 2004) (concluding service of process upon a fifteen year old was invalid
because of a conflict between two immigration regulations, and to avoid serious due
process concerns).
We generally disfavor adopting rules which create an incentive for parties to
engage in forum shopping. E.g., Eggleton v. Plasser & Theurer Export Von
Bahnbaumaschinen Gesellschaft, MBH, 495 F.3d 582, 589 (8th Cir. 2007); Bldg.
Erection Servs., Inc. v. JLG, Inc., 376 F.3d 800, 805 (8th Cir. 2004); Rajala v.
Donnelly Meiners Jordan Kline, P.C., 193 F.3d 925, 928 (8th Cir. 1999); see also
Singh v. Gonzales, 495 F.3d 553, 558 (8th Cir. 2007) (referring to an alien's effort to
engage in forum shopping as a reason supporting an immigration judge's adverse
credibility determination).
Llapa-Sinchi argues the rule adopted by the Court – which applies our circuit's
law to a transferred immigration proceeding which commenced with service of
process in the Ninth Circuit – will encourage forum shopping. I agree. Immigrants
properly served with a notice to appear within the exterior boundaries of the Eighth
Circuit can transfer their cases to the Ninth Circuit, and thereafter challenge the
validity of service. Likewise, the government can effectively "fix" invalid service
which occurs within the boundaries of the Ninth Circuit by transferring an immigrant's
case to another circuit which recognizes the service as valid.
For the limited purpose of determining the validity of service, I believe the law
of the circuit where service is accomplished should govern. Any other rule
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encourages and facilitates forum shopping by both parties. I therefore respectfully
dissent.
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