IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60686

LEONILO RETANA LEYVA, 

 Petitioner,

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL, 

 Respondent.

Petition for Review of an Order of 

the Board of Immigration Appeals

No. A209 411 752

Before OWEN, Chief Judge, and JONES and STEWART, Circuit Judges.

PER CURIAM:*

Leonilo Retana Leyva (Retana) petitions for review of decisions of the 

Board of Immigration Appeals (BIA) dismissing his appeal of the decision of 

the Immigration Judge (IJ) ordering Retana’s removal and denying his 

motion to reopen. We affirm.

I

On September 7, 2016, Department of Homeland Security (DHS or 

Government) officer B. Fauble completed a Form I-213 using information 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 25, 2020

Lyle W. Cayce

Clerk

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provided by Johnson County Detention Center detainee Leonilo Retana Leyva. 

The I-213 states that Retana is a citizen and national of Mexico who illegally 

entered the United States in 2003. That same day, DHS served Retana with a 

Notice to Appear (NTA) charging him with being illegally present in the United 

States.

Retana appeared pro se before the IJ on September 29, 2016, and October 

5, 2016. At those hearings, Retana stated that he understood he was attending

immigration proceedings and that he understood his rights as explained to 

him. However, at both hearings, Retana displayed some confusion as to his 

situation. At the first hearing, when asked whether he knew the Government 

was trying to deport him, Retana stated, “I don’t—I didn’t know that. This 

case—I don’t have to worry about it because I don’t owe anything. The 

person—the other person is the one that owes everything to the Government.” 

At the second hearing, when asked the same question, he answered, “no.” 

Additionally, at both hearings, Retana mentioned that he was experiencing 

seizures. At the end of the October 5 hearing, the IJ ordered the Government 

to conduct a competency exam on Retana.

At a hearing on October 20, 2016, Retana answered a number of 

biographical questions. When asked if he knew why he was in immigration 

proceedings, Retana answered “Yes. The reason is because I have been for a 

long time already [indiscernible] and I guess that’s why Immigration came for 

me there.” At that point in the hearing, the IJ determined that Retana 

understood the nature of the proceedings, but stated that he would continue to 

determine whether Retana fully appreciated the proceedings. Further 

conversation with Retana revealed that he was experiencing some confusion. 

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For example, when the IJ asked Retana whether he believed he was in the 

United States illegally, Retana answered, 

Well, I’m going to tell you one thing. When I came the first time I 

asked God that if it was His will for me to come—and I told Him 

that and so when that Immigration dog came to me I told the dog 

don’t bite me, don’t harm me and don’t tell on me that I am here 

and when I told him that immediately the dog left.

After Retana’s confusion became evident, the IJ determined that Retana 

was not competent to proceed by himself and that his recent seizures may have 

affected his ability to think clearly and participate adequately in the 

proceedings. The IJ continued the case and ordered the Government to provide 

the mental health evaluation performed upon his initial detention. Retana 

then had a seizure in full view of the court, and the hearing ended. 

DHS complied with the IJ’s order by producing the Mental Health 

Review prepared by Dr. Erica Swicegood on September 14, 2016. The Mental 

Health Review stated, inter alia, that Retana had “no stated mental health 

history,” “denie[d] all psychiatric symptoms,” “[d]enie[d] previous 

hospitalizations . . . [and] medications,” was not currently in psychiatric 

treatment, made “good eye contact,” was “goal directed” and “alert,” and had 

“fair” judgment.

Retana next appeared before the IJ represented by pro bono counsel. The 

IJ granted a short continuance to give counsel time to become familiar with 

the case. At Retana’s next hearing, counsel objected to the IJ’s request for 

Retana to state his full name, stating that Retana was disputing his identity 

and alienage based on his mental competency issues. Counsel also filed three

motions: (1) a motion to terminate the proceedings with prejudice based on 

improper service of the NTA; (2) a motion for “psychological, neurological and 

IQ test evaluations” paid for by the Government; and (3) a motion for a 

continuance to obtain a competency evaluation and to contact various medical 

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providers. At the end of the hearing, the Government served Retana’s counsel 

with the NTA.

At Retana’s next hearing, the IJ issued an oral decision denying Retana’s 

motions for termination of the proceedings and for testing at government 

expense. After receiving that decision, Retana’s counsel moved to terminate 

the proceedings on the basis that a state-appointed guardian was necessary to 

protect Retana’s rights. The IJ denied that motion as well. Next, Retana’s 

counsel denied the charge against Retana. The Government responded by 

submitting the I-213 to establish alienage. Counsel objected to the use of the 

I-213, arguing that it is unreliable because Retana, who provided the 

information in the I-213, has been found to be mentally incompetent. The IJ 

overruled the objection. Retana’s counsel then moved for a brief continuance 

to obtain additional medical records. The IJ granted the motion.

At Retana’s next and final hearing, Retana’s counsel proffered 

documents purportedly showing that Retana had “a growth in his brain, 

probably worms which require surgery.” Retana asked for a continuance to 

contact Dr. Chadwell, who allegedly had information about Retana’s condition 

and the reliability of his memory at the time the I-213 was prepared. The IJ 

denied the motion. The IJ then determined that the charge against Retana 

had been established and that he was removable.

The IJ issued a written decision explaining his various rulings and 

ordering that Retana be removed from the United States. Retana appealed 

that decision to the BIA, which dismissed Retana’s appeal. Retana petitioned 

this court for review of the BIA’s decision.

Retana subsequently filed a motion to reopen the case with the BIA, 

attaching a document in which Dr. Swicegood, the doctor who generated 

Retana’s Mental Health Review, stated that she did not assess Retana’s 

competency. The BIA denied the motion to reopen. Retana petitioned this 

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court to review that decision. Retana’s counsel represents that Retana was 

deported to Mexico without counsel’s knowledge prior to the filing of the motion 

to reopen.

II

Retana first contends that the BIA erred in upholding the IJ’s denial of 

his motion to dismiss based on defects in the service of the NTA, which Retana 

contends violated the regulations governing the service of NTAs as well as his 

right to due process.

A federal statute, 8 U.S.C. § 1229(a), requires the Government to provide 

aliens written notice of removal proceedings in person, or, if personal service 

is not practicable, through service by regular mail to the alien or the alien’s 

counsel.1 DHS regulations provide specific instructions for the service of aliens 

depending on their competency to understand the proceedings initiated 

against them and confinement in a penal or mental institution. Under 8 C.F.R. 

§ 103.8(c)(2), 

(i) . . . If a person is confined in a penal or mental institution or 

hospital and is competent to understand the nature of the 

proceedings initiated against him, service shall be made both upon 

him and upon the person in charge of the institution or the 

hospital. If the confined person is not competent to understand, 

service shall be made only on the person in charge of the 

institution or hospital in which he is confined, such service being 

deemed service on the confined person.

(ii) . . . In case of mental incompetency, whether . . . confined 

in an institution . . . service shall be made upon the person with 

whom the incompetent . . . resides; whenever possible, service 

shall also be made on the near relative, guardian, committee, or 

friend.

1 8 U.S.C. § 1229(a); see also 8 C.F.R. § 1003.13 (“[A] Notice to Appear . . . shall be 

served to the alien in person, or if personal service is not practicable, shall be served by 

regular mail to the alien or the alien’s attorney of record.”).

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The BIA set forth its interpretation of these regulations in Matter of 

E-S-I-.2 The BIA noted that the regulations prescribe different methods of 

service for aliens who are competent to understand the proceedings against 

them and aliens who are not.3 The BIA “recognize[d], however, that the DHS 

is often not able to determine at the time that it serves the notice to appear 

whether the respondent’s case is a ‘case of mental incompetency,’” as that term 

is used in 8 C.F.R. § 103.8(c)(2)(ii).4 In light of this uncertainty, the BIA held 

that, when “DHS is aware of indicia of incompetency at the time it serves the 

notice to appear, the case should be handled as ‘a case of mental incompetency,’ 

and the respondent should be served in accordance with 8 C.F.R. 

§§ 103.8(c)(2)(i) and (ii).”5 

The BIA also discussed cases in which “competency issues manifest after 

service of the notice to appear.”6 The BIA observed that “[m]ental competency 

is a variable condition”7 and that, accordingly, “the longer the period of time 

that has elapsed since service of the notice to appear, the more difficult it 

becomes to gauge whether an individual was competent at the time of service.”8 

The BIA then provided explicit instructions based on the time that elapsed 

between service of the NTA and the manifestation of indicia of incompetency.9 

If indicia of incompetency arise “shortly after service of the notice to 

appear . . . the DHS should be granted a continuance to serve the notice to 

appear in accordance with [§ 103.8(c)(2)] and this decision.”10 If the indicia of 

2 26 I. & N. Dec. 136, 140 (BIA 2013).

3 Id.

4 Id. at 144 (quoting 8 C.F.R. § 103.8(c)(2)(ii)).

5 Id. (emphasis added).

6 Id. (capitalization omitted).

7 Id. (citing Matter of M-A-M-, 25 I. & N. Dec. 474, 480 (BIA 2011)).

8 Id.

9 Id. at 144-45.

10 Id. at 144.

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incompetency arise at a later date, the IJ should “consider whether a new 

service of the notice to appear pursuant to 8 C.F.R. §§ 103.8(c)(2)(i) and (ii) 

would be among the safeguards needed for the case to proceed” and, if so, 

“should grant the DHS a continuance for that purpose.”11

A

Retana contends that the Government was aware of sufficient indicia of 

incompetency at the time of the service of the NTA to trigger the Government’s 

obligation to comply with § 103.8(c)(2). Specifically, Retana argues that his 

“slow speech and motor skills as well as his illiteracy were manifest indicia of 

his incompetency that the DHS officer processing his case must have 

recognized.” Retana, however, does not cite any evidence in the record in 

support of that assertion. Further, the IJ interacted with Retana on multiple 

occasions and considered those interactions when coming to his conclusion. 

Retana has not presented clear evidence of the exact facts that qualify as 

indicia of his incompetency or the Government’s awareness of those facts prior 

to service of the NTA. Therefore, we will not overturn the IJ’s conclusion that, 

at the time the NTA was served, Retana did not display sufficient indicia of 

incompetency to trigger § 103.8(c)(2).

Having decided that the obligation to comply with § 103.8(c)(2) did not 

arise until October 20, 2016, the IJ concluded that DHS “complied with Matter 

of E-S-I- and the regulations by personally serving the Warden of Johnson 

County Detention Center where Respondent is currently being detained.” The 

IJ described the circumstances of the warden’s service as follows: “Although 

not clear in its response, the NTA was apparently faxed to a Deportation 

Officer at Johnson County who personally served the Warden as evidenced by 

his signature.”

11 Id. at 144-45.

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The BIA affirmed the IJ’s ultimate conclusion—that service was not 

defective—but seems to have adopted a different rationale.

[R]espondent also argues that the DHS’s service of the NTA on the 

detention facility warden by facsimile was defective. . . . We note 

that the applicable regulation provides for personal service in a 

number of ways, including by electronic mail. . . . In any event, as 

the Immigration Judge noted, counsel was also personally served 

with the NTA in court on December 8, 2016 . . . . We agree with 

the Immigration Judge that the respondent has not established 

any defect in service that warrants termination of proceedings.

The difference in the IJ and BIA decisions is important because “[w]e 

review the BIA’s decision and only consider the IJ’s decision to the extent that 

it influenced the BIA.”12 Although there is some tension between the exact 

mode of service on the warden described by the IJ and the BIA rulings, there 

is no dispute that the NTA was received by the warden. We affirm the BIA on 

the grounds discussed below, namely, that Retana has not demonstrated that 

he was prejudiced by the defective service.

B

Although neither the BIA nor the IJ explicitly based its decision on any 

lack of prejudice, we read those decisions as coming to that conclusion. The IJ 

concluded that DHS complied with § 103.8(c)(2) by personally serving the 

warden. The BIA “agree[d] with the Immigration Judge that the respondent 

has not established any defect in service that warrants termination of 

proceedings,” focusing on the personal service of Retana’s counsel. We read 

the BIA’s statement that Retana “has not established any defect in service that 

warrants termination of proceedings” as based on the BIA’s conclusion that 

Retana failed to establish any prejudice resulting from the alleged defects in 

the service of the NTA. This reading is supported by the BIA’s statement that, 

12 Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir. 2009) (citing Mikhael v. I.N.S., 115 

F.3d 299, 302 (5th Cir. 1997)).

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“[i]n any event, as the Immigration Judge noted, counsel was also personally 

served with the NTA in court on December 8, 2016.” There is no argument 

that service on counsel could satisfy the regulations requiring service on a 

warden, so the BIA likely considered service on counsel when determining 

whether there had been any prejudice. 

We agree that Retana has not demonstrated the requisite prejudice for 

a successful due process claim. Retana relies on United States ex rel. Accardi 

v. Shaughnessy13 for the proposition that an agency’s failure to follow its own 

regulations “violates due process and no showing of prejudice or harmful error 

is required.” However, this circuit has explicitly read Accardi as establishing 

that “[f]ailure to adhere to regulations can constitute a denial of due process of 

law,” not that it always does.14 Rather, in this circuit, “[t]he failure of an 

agency to follow its own regulations is not . . . a per se denial of due process 

unless the regulation is required by the constitution or a statute.”15 

Accordingly, to decide whether a violation of § 103.8(c)(2) is a per se 

denial of due process such that an additional showing of prejudice is not 

required, we must decide whether the procedures imposed by § 103.8(c)(2) are 

required by a statute or the Constitution. Neither party makes any argument 

in this regard. The most relevant statute only requires the Government to 

provide aliens with written notice of removal proceedings in person, or, if 

personal service is not practicable, through service by regular mail to the alien 

or the alien’s counsel.16 Accordingly, Retana has not established that a 

violation of § 103.8(c)(2) is a per se violation of an alien’s right to due process.

13 347 U.S. 260 (1954).

14 Arzanipour v. I.N.S., 866 F.2d 743, 746 (5th Cir. 1989) (emphasis added) (first citing 

Accardi, 347 U.S. 260; and then citing Bridges v. Wixon, 326 U.S. 135 (1945)).

15 Id.

16 See 8 U.S.C. § 1229(a).

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Retana’s alternative prejudice argument, that he suffered prejudice in 

the form of “his continued detention following such failure of proper service,” 

misunderstands the type of prejudice that must be shown. In a removal 

proceeding, “[d]emonstration of prejudice requires the alien to show a 

reasonable likelihood that, but for the errors complained of, he would not have 

been removed.”17 Retana effectively argues that, but for the BIA’s decision not 

to dismiss the proceedings against him due to the aforementioned service

issues, the result of his proceedings would have been different. This is 

obviously true. However, the test for determining whether an alien would have 

been removed without “the errors complained of” in a motion to dismiss on due 

process grounds is not whether the proceedings would have been dismissed if 

that motion was granted—that is the case for all of the errors complained of in 

motions to dismiss on due process grounds. Rather, the test is whether the 

result would have been different but for the errors forming the basis of the 

motion,18 in this case the manner in which the warden was served. 

Retana makes no attempt to explain how the result of the proceeding 

would have been different if the warden was served in a different manner. Nor 

can he, as the purposes of serving the warden—“ensuring that an alien appears 

before the Immigration Court at the scheduled time”19 and helping “the DHS 

and the Immigration Court identify someone who can assist the [alien] so that 

proceedings can go forward”20—were both met here. Retana was appointed 

counsel and there is no evidence that Retana ever missed any immigration 

hearings. Accordingly, we affirm the BIA on the ground that Retana has not 

demonstrated that he was prejudiced by any issues with the service of his NTA. 

17 Nguyen v. Dist. Dir., Bureau of Immigr. & Customs Enf’t, 400 F.3d 255, 259 (5th 

Cir. 2005) (citing United States v. Benitez–Villafuerte, 186 F.3d 651, 658-59 (5th Cir. 1999)).

18 See id.

19 Matter of Amaya-Castro, 21 I. & N. Dec. 583, 585 (BIA 1996).

20 Matter of E-S-I-, 26 I. & N. Dec. 136, 142 (BIA 2013).

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III

Retana contends that the BIA erred when it concluded that the IJ 

provided Retana with sufficient safeguards in light of his competency. 

Retana’s argument is based on the IJ’s refusal to appoint a guardian. The BIA 

rejected this argument on the ground that Retana “cites no legal authority to 

support the assertion that removal proceedings may not be initiated or 

continued against an incompetent respondent who has no state-appointed legal 

guardian.”

The BIA cited its decision in Matter of M-A-M-21 as establishing the 

safeguards that must be provided to incompetent respondents. The BIA began 

its discussion in Matter of M-A-M- by examining the text of 8 U.S.C. 

§ 1229a(b)(3).22 That statute states, “[i]f it is impracticable by reason of an 

alien’s mental incompetency for the alien to be present at the proceeding, the 

Attorney General shall prescribe safeguards to protect the rights and 

privileges of the alien.”23 According to the BIA, § 1229a(b)(3)’s “invocation of 

safeguards presumes that proceedings can go forward, even whe[n] the alien 

is incompetent, provided the proceeding is conducted fairly.”24 The BIA 

identified a number of safeguards that have been required by regulation, 

including (1) requirements for the service of incompetent individuals (8 C.F.R. 

§ 103.8); (2) regulations prohibiting IJs from “accept[ing] an admission of 

removability from an unrepresented respondent who is incompetent and 

unaccompanied” (8 C.F.R. § 240.10(c)); and, most relevant to the guardianship 

issue, (3) a regulation that permits a “legal representative or guardian, near 

relative, or friend” to appear on behalf of a respondent who cannot be present 

21 25 I. & N. Dec. 474 (BIA 2011).

22 See M-A-M-, 25 I. & N. Dec. at 477.

23 8 U.S.C. § 1229a(b)(3).

24 M-A-M-, 25 I. & N. Dec. at 477.

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(8 C.F.R. § 1240.4).25 The BIA concluded that, outside these required

safeguards, “Immigration Judges have discretion to determine which 

safeguards are appropriate, given the particular circumstances in a case before 

them.”26 The BIA provided a list of “appropriate safeguards” that included 

both “managing the case to facilitate the respondent’s ability to obtain legal 

representation” and “participation of a guardian in the proceedings.”27

The parties accept the BIA’s interpretation of what is required by 

§ 1229a(b)(3)—for IJs to impose appropriate safeguards. The parties do not 

attempt to distinguish the requirements imposed by that statute from the 

requirements imposed by the Due Process Clause, namely, providing the 

safeguards necessary to ensure “notice and a fair opportunity to be heard” and

prevent “prejudice.”28 The parties merely disagree as to whether those 

standards require the appointment of a guardian in this case.

Retana has not established that the denial of a guardian impacted his 

opportunity to be heard. Retana, through counsel, filed a considerable number 

of motions, introduced evidence, and objected to evidence introduced by the 

Government. Retana also has not established that he suffered any prejudice 

from his lack of a guardian, as he has not made any assertion about how a 

guardian would have changed the result of the proceedings against him.29 This 

makes sense, as effective counsel can secure many of the benefits provided by 

a guardian. The BIA correctly concluded that the IJ’s decision to proceed 

25 Id. at 478.

26 Id. at 481-82.

27 Id. at 483.

28 United States v. Villanueva-Diaz, 634 F.3d 844, 850, 852 (5th Cir. 2011).

29 Nguyen v. Dist. Dir., Bureau of Immigr. & Customs Enf’t, 400 F.3d 255, 259 (5th 

Cir. 2005) (citing United States v. Benitez–Villafuerte, 186 F.3d 651, 658-59 (5th Cir. 1999))

(“Demonstration of prejudice requires the alien to show a reasonable likelihood that, but for 

the errors complained of, he would not have been removed.”).

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without appointing a guardian did not violate the § 1229a(b)(3) safeguards or 

Retana’s right to due process.

IV

Retana next contends that the BIA erred in upholding the IJ’s denial of 

his motion for a psychological examination, neurological examination, and IQ 

test paid for by the Government. The BIA held that Retana’s requested 

examinations were not required because, by the time Retana requested them, 

“the Immigration Judge had already determined that [Retana] was not 

competent, and [Retana] has not shown how further examination would 

safeguard [his] rights in proceedings.” The BIA seems to have concluded that 

there was no need for the requested examinations because Retana intended to 

use them as evidence of incompetency and the IJ had already found Retana to 

be incompetent.

Retana responds that he intends to use the additional examinations to 

establish that he was incompetent on September 7, 2016—the date that he was 

served and provided the information contained in his I-213. According to 

Retana, establishing that he was not competent on that date “is vital to the 

determination of whether service was defective and whether deportability was 

established.”

As far as service is concerned, Retana implicitly argues that the 

examinations could reveal information that would demonstrate that, on the 

date of the service of his NTA, the Government was aware of indicia of Retana’s 

incompetency that required it to comply with § 103.8(c)(2). However, Retana 

argues that the Government failed to comply with § 103.8(c)(2) by failing to 

serve the warden in person, not by failing to serve the warden in a timely 

manner. The warden was served in December of 2016—after Retana was 

found incompetent. Accordingly, the presence of any earlier indicia of 

incompetency would not alter the service required because § 103.8(c)(2) 

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already applied. As a result, Retana has not shown how further examination 

would safeguard his rights under § 103.8(c)(2), never mind his right to due 

process.

As far as the establishment of deportability is concerned, Retana argues 

that the examinations would help safeguard his rights by establishing that he 

was incompetent when he provided the information in his I-213. Once this is

established, according to Retana, the Due Process Clause prevents the IJ from 

relying on the information in his I-213. This argument is unavailing. 

Immigration officers verified the information Retana provided regarding his 

birthplace through checks in various databases. Thus, the Government would 

have had access to this information even without the statements made by 

Retana while he was allegedly incompetent. Furthermore, there is no 

indication that Retana’s statement in the I-213 that he was born in Mexico was 

incorrect. Because immigration officers could have obtained this information 

even without Retana’s statement, Retana has failed to establish how further 

examination could safeguard his right to due process. 

V

Lastly, Retana asserts that the BIA erred by not assigning his appeal to 

a three-member panel. This argument is foreclosed by our precedent. Appeals 

of IJ decisions are initially assigned to a single Board member.30 Under 8 

C.F.R. § 1003.1(e)(5), the Board member to whom an appeal is assigned “has 

the discretion to decide whether the case merits review by a three-member 

panel. Assignment to a three-member [panel] is not mandatory even if it meets 

the criteria under 8 C.F.R. § 1003.1(e)(6).”31 We held in Cantu-Delgadillo v. 

Holder that “[b]ecause the decision to designate the case to be heard by a three30 See 8 C.F.R. § 1003.1(e)(5).

31 Cantu-Delgadillo v. Holder, 584 F.3d 682, 690-91 (5th Cir. 2009).

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member panel is discretionary, this court lacks jurisdiction to review the BIA’s 

decision.”32 Accordingly, the BIA did not err in this case by not assigning 

Retana’s appeal to a three-member panel.

* * *

For these reasons, the order of the BIA is AFFIRMED.

32 Id. at 691.

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