IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60478

DOUGLAS VLADIMIR LOPEZ-DUBON

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

Before JOLLY and DENNIS, Circuit Judges, and BOYLE, District Judge.

*

DENNIS, Circuit Judge:

In June 1996, Petitioner Douglas Vladimir Lopez-Dubon (“Lopez-Dubon”)

entered the United States without inspection or authorization. He was

apprehended in September of that year and was personally served with an Order

to Show Cause (“OSC”) why he should not be deported. Lopez-Dubon was 17 at

the time. Upon his release he was informed that he would be notified of the date

and location of his deportation hearing by mail, and that it was his responsibility

to keep the immigration authorities informed as to his current address. Notice

was mailed to the address Lopez-Dubon had provided before his release, but was

United States Court of Appeals

Fifth Circuit

F I L E D

June 16, 2010

Lyle W. Cayce

Clerk

 District Judge, Northern District of Texas, sitting by designation. *

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No. 08-60478

returned because Lopez-Dubon no longer lived there and the postal service could

not complete delivery. A year later, on July 14, 1997, after Lopez-Dubon failed

to appear, an immigration judge ordered him deported in absentia.

On November 17, 2006, Lopez-Dubon filed a motion to reopen his case in

order to seek adjustment of his immigration status. Lopez-Dubon’s motion stated

that he was 17 at the time he was initially detained in September 1996. The

motion did not argue that his age had any relevance, however, but instead

claimed that he had never received notice of the deportation hearing. An

immigration judge denied the motion and Lopez-Dubon appealed to the Board

of Immigration Appeals (“BIA”), which dismissed his appeal on the grounds that

a notice of the hearing was sent to the address Lopez-Dubon had provided when

he was released, but was returned as undeliverable. Lopez-Dubon filed a motion

for reconsideration, arguing for the first time that notice should have been

served on a responsible adult because Lopez-Dubon was only 17 at the time he

was detained. The BIA denied the motion but, rather than holding that the agerelated-notice argument was not properly before it, the BIA addressed the issue

on the merits and rejected Lopez-Dubon’s argument. Lopez-Dubon timely filed

a petition for review.

The first question in this case is whether this court has jurisdiction over

Lopez-Dubon’s appeal. An alien’s failure to exhaust administrative remedies is

a jurisdictional bar to our consideration of an issue. 8 U.S.C. § 1252(d)(1); Roy

v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). In this case, Lopez-Dubon did not

raise the issue of age-related notice until his motion for reconsideration before

the BIA. Nevertheless, the BIA addressed the issue on the merits. We have not

previously addressed the question of whether an issue not properly raised by a

petitioner in immigration proceedings but nevertheless addressed on the merits

by the BIA may be considered by this court. See Omari v. Holder, 562 F.3d 314,

319 (5th Cir. 2009) (noting a circuit split on this issue but declining to choose a

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side). Almost every court of appeals will address an issue on the merits when the

BIA has done so, even if the issue was not properly presented to the BIA itself.

See Lin v. Attorney General, 543 F.3d 114, 122-26 (3d Cir. 2008) (discussing

circuit split). We agree. We are persuaded that, as the Tenth Circuit has

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reasoned, the purpose of the statutory exhaustion requirement is to allow the

BIA “the opportunity to apply its specialized knowledge and experience to the

matter” and to “resolve a controversy or correct its own errors before judicial

intervention.” Sidabutur v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007)

(internal citations and quotation marks omitted). These purposes are fulfilled

when the BIA chooses to address an issue on the merits despite potential defects

in its posture before the BIA. Thus, “[i]f the BIA deems an issue sufficiently

presented to consider it on the merits, such action by the BIA exhausts the issue

as far as the agency is concerned and that is all that [8 U.S.C.] § 1252(d)(1)

requires to confer our jurisdiction.” Id. at 1119. We therefore have jurisdiction

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over the question of whether the notice provided to Lopez-Dubon was insufficient

because of his age at the time of his detention.

This court reviews a decision by the BIA under a “highly deferential”

standard. Zhao v. Gonzales, 404 F.3d 295, 301-03 (5th Cir. 2005). The BIA’s

factual findings are reviewed under a “substantial evidence” standard, such that

this court will not overturn factual findings unless the evidence compels a

contrary conclusion. Mireles-Valdez v. Ashcroft, 349 F.3d 213, 215 (5th Cir.

2003). Question of law are reviewed de novo, but “[w]e accord deference to the

Board's interpretation of immigration statutes unless there are compelling

Only the Eleventh Circuit bars review in such a circumstance. Amaya-Artunduaga 1

v. Attorney General, 463 F.3d 1247, 1250-51 (11th Cir. 2006).

8 U.S.C. § 1252(d)(1) simply states that a federal court may review a final order of 2

removal only if “the alien has exhausted all administrative remedies available to the alien as

of right.”

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indications that the Board's interpretation is incorrect.” Rojas v. INS, 937 F.2d

186, 189 (5th Cir. 1991).

On appeal, Lopez-Dubon argues that the notice of deportation was never

properly served because he was 17 at the time of his detention and release and

therefore notice should have been served upon a responsible adult instead of

him. Lopez-Dubon’s argument rests on the interaction, if any, between 8 C.F.R.

§ 1236.3, governing the release of juvenile aliens, and 8 C.F.R. § 103.5(a),

governing service of notice requirements for deportation proceedings. Section §

1263 provides that a juvenile (defined as an alien under the age of 18) “shall be

released, in order of preference, to: (i) A parent; (ii) Legal guardian; or (iii) An

adult relative (brother, sister, aunt, uncle, grandparent) who is not presently in

Service detention . . . .” This regulation says nothing about notice. However

§ 103.5(a), which is entitled “Service of notification, decisions, and other papers

by the Service,” states that service of notice for immigration proceedings on a

responsible adult is only required “in the case of a minor under 14 years of age.”

Id. at § 103.5(a)(c)(2)(ii). Lopez-Dubon argues, essentially, that despite the

explicit provision calling for service on an adult only if the detained minor is

under 14 years of age, the separate provision requiring release of aliens under

18 to an adult’s custody overrides the specific service of notice provision and

requires that notice be served on an adult for all aliens under 18 years of age. In

so arguing, Lopez-Dubon relies on a Ninth Circuit opinion, Flores-Chaves v.

Ashcroft, 362 F.3d 1150 (9th Cir. 2004), which adopted this reasoning,

determined that the two provisions were inconsistent, and held that the BIA’s

decision that the service provision controlled was unreasonable. Instead, the

Ninth Circuit held, the release provision required that notice be served on an

adult for any alien under 18 years of age. See id. at 1163.

The BIA, however, concisely rejected that reasoning in this case. The BIA

acknowledged that the regulations require notice to be served on an adult for

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aliens under 14 years of age, but noted that Lopez-Dubon was 17 at the time of

his detention and therefore held that service of the Order to Show Cause upon

him was proper. Though doubtless aware of Flores-Chavez, the BIA instead cited

to an Eighth Circuit case, Llapa-Sinchi v. Mukasey, 520 F.3d 897 (8th Cir. 2008).

In Llapa-Sinchi, the Eighth Circuit rejected the Ninth Circuit’s reasoning in

Flores-Chavez. Llapa-Sinchi, 520 F.3d at 900-01. The Eighth Circuit instead

deferred to the BIA’s determination in Llapa-Sinchi’s case that the general

service provision of § 103.5(a) controls. Id.

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By citing to Llapa-Sinchi, the BIA in this case adopted the Eighth Circuit’s

approach and reaffirmed that it interprets its own regulations to require notice

to be served on an adult only when an alien is under 14 years of age. We cannot

say that this is an unreasonable interpretation of the regulations. The service

provision specifically calls for notice to be served on an adult only when the alien

is under 14 years of age. The release provision relied upon by Lopez-Dubon and

by the Ninth Circuit does not cross-reference or address the service provision,

and it would be a strained analysis indeed that would resolve this issue by

deciding not only that the provisions were inconsistent but that the more general

release provision somehow negated the specific service provision despite making

no reference to notification at all. We therefore affirm the BIA’s holding that

notice must be served on an adult only for aliens under 14 years of age. See also

Interiano de Rivas v. Gonzales, 177 F. App’x 447, 448-51 (5th Cir. 2006)

(unpublished) (holding that service on a 17 year-old was proper without

addressing the question of age); Matter of Ponce-Hernandez, 22 I. & N. Dec. 784,

785 (B.I.A. 1999) (holding that service on a 15-year-old was proper).

The Second Circuit was also presented with this question in Llanos-Fernandez v. 3

Mukasey, 535 F.3d 79, 85 (2d Cir. 2008). The Second Circuit declined to decide the issue and

instead remanded to the BIA for additional guidance. The BIA has not issued a new opinion

in the case as of this writing.

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Lopez-Dubon also argues that service of notice of a deportation hearing on

a minor is an unconstitutional violation of due process. We are unpersuaded. An

alien is entitled to due process with regard to his deportation hearing. United

States v. Estrada-Trochez, 66 F.3d 733, 733-36 (5th Cir. 1995). For service to

satisfy the requirements of due process, it must be “reasonably calculated, under

all the circumstances, to apprise interested parties of the pendency of the action

and afford them an opportunity to present their objections.” Mullane v. Cent.

Hanover Bank & Trust, 339 U.S. 306, 314 (1950). In general, sending notice of

a deportation hearing to an alien satisfies this requirement. Estrada-Trochez,

66 F.3d at 736. Lopez-Dubon argues that due process requires that notice be

served upon a responsible adult if an alien is under 18. But minors “can be

responsible for their own legal status and can waive their constitutional rights”

in some circumstances. Llapa-Sinchi, 520 F.3d at 900. The Supreme Court has

held that “minors can be responsible for waiving their right to appeal

deportation and custody determinations.” Id. (citing Reno v. Flores, 507 U.S. 292,

308-09 (1993)). Minors are also empowered to waive various other legal rights,

at certain times and in certain contexts, including Miranda rights, the right to

appeal, and the right to a jury trial. See Llapa-Sinchi, 520 F.3d at 900 (listing

cases). As the Eighth Circuit pointed out in Llapa-Sinchi, many states allow

personal service on minors as young as 14. Id. (citing Missouri, Minnesota,

Nevada, Arkansas and North Dakota statutes). Here, Lopez-Dubon was 17 years

old, only one year shy of legal adulthood. He conceded that he was informed that

he would have to appear for a deportation hearing, and that he understood that

responsibility and planned to appear. Thus, we hold that the notice served in

this case was “reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the actions and afford them an opportunity

to present their objections,” Mullane, 339 U.S. at 314. There was no due process

violation.

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Having established that Lopez-Dubon was the proper party to receive

notice and that serving notice on him at 17 years of age was not a due process

violation in and of itself, we must consider whether the BIA’s factual finding that

notice was properly served was supported by substantial evidence. An alien is

entitled to written notice of immigration proceedings against him, but an alien

is responsible for updating immigration authorities with his current address.

Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). Thus an order of

removal will not be set aside, even if the alien did not receive notice, if “the

alien’s failure to receive actual notice was due to his neglect of his obligation to

keep the immigration court apprised of his current mailing address.” GomezPalacios, 560 F.3d at 360.

The BIA found that notice of the deportation hearing was sent by certified

mail to Lopez-Dubon at his last known address, and that Lopez-Dubon was

advised at the time of his release of the consequences of failure to appear at his

deportation hearing, and also of his responsibility to keep the immigration court

updated as to his whereabouts so that notice of any proceedings could be sent to

him. The BIA found that there was no evidence that Lopez-Dubon had attempted

to update his address with the immigration court. Lopez-Dubon has not pointed

to any evidence suggesting that these findings were clearly erroneous. The

findings were supported by substantial evidence: the record contained the notice

that was sent, which was returned when Lopez-Dubon could not be located at

the address he provided, and there is no evidence that Lopez-Dubon kept the

immigration court informed of his change of address, nor does his affidavit state

that he did so. We therefore affirm the BIA’s finding that Lopez-Dubon’s failure

to receive notice of his hearing was due to his own neglect, and he is not entitled

to relief on this ground.

Finally, we reject Lopez-Dubon’s argument that the BIA and the

immigration judge abused their discretion in failing to reopen his deportation

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proceedings sua sponte. The authority to sua sponte reopen deportation

proceedings is entirely discretionary, and we lack jurisdiction to review this

claim. Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 250 (5th Cir. 2004).

For the foregoing reasons the petition for review is DENIED.

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