Cite as 23 I&N Dec. 533 (BIA 2002) Interim Decision #3484 

In re Rosa MEJIA-ANDINO, Respondent 

File A77 620 047 - Harlingen 

Decided December 4, 2002 

U.S. Department of Justice

Executive Office for Immigration Review 

Board of Immigration Appeals 

Removal proceedings against a minor under 14 years of age were properly terminated 

because service of the notice to appear failed to meet the requirements of 8 C.F.R. 

§ 103.5a(c)(2)(ii) (2002), as it was served only on a person identified as the respondent’s 

uncle, and no effort was made to serve the notice on the respondent’s parents, who apparently 

live in the United States. 

Pro se 

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Sylvia H. Alonso, 

Appellate Counsel, and Lisa M. Putnam, Assistant District Counsel 

BEFORE: Board En Banc: SCIALABBA, Chairman; DUNNE, Vice Chairman; HOLMES, 

HURWITZ, VILLAGELIU, FILPPU, COLE, GUENDELSBERGER, GRANT, 

MILLER, HESS, and PAULEY, Board Members. Concurring Opinion: 

ESPENOZA, Board Member, joined by SCHMIDT, MOSCATO, BRENNAN, 

and OSUNA, Board Members. 

GUENDELSBERGER, Board Member: 

In a decision dated March 6, 2000, an Immigration Judge terminated 

removal proceedings against the respondent. On May 17, 2002, we dismissed 

the Immigration and Naturalization Service’s appeal from that decision. The 

Service has filed a timely motion requesting reconsideration en banc. The 

motion will be granted. Upon reconsideration, we will affirm our prior 

decision. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

The respondent was 7 years old when she was apprehended by the Service 

in August 1999 and charged with unlawful entry into the United States. The 

respondent failed to appear for hearings on November 2, 1999, and March 6, 

2000. At the second hearing the Service requested that the Immigration Judge 

enter an in absentia order of removal. After considering the evidence of 

record, the Immigration Judge terminated proceedings, finding that the Service 

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failed to demonstrate that the charging document was properly served on the 

respondent, that the respondent was given the opportunity to appear for her 

hearing, or that the respondent was removable as charged. 

The record before the Immigration Judge included the Notice to Appear 

(Form I-862) and a Record of Deportable/Inadmissible Alien (Form I-213). 

The narrative portion of the Form I-213 states that the 7-year-old respondent 

“admitted to illegally entering the United States by wading the Rio Grande 

River at a point not designated as a Port of Entry at or near Los Indios, Texas 

on or about August 23, 1999”; that she “claimed to have left Honduras on or 

about August 1, 1999 and travelled by a combination of foot and bus until 

reaching the Rio Grande River near Matamoros, Tamaulipas”; and that she 

“stated that she was en route to Detroit, Michigan to reside with her family.” 

The Form I-213 reports that the respondent was apprehended with a group of 

four other undocumented aliens of Honduran citizenship, among whom were 

her brother, her sister, and an uncle. 

The Immigration Judge found that the Notice to Appear was personally 

served on the person identified in the Form I-213 as the respondent’s uncle.1 

She determined, however, that more should be required in the case of a 

7-year-old child than a conclusory statement in a Form I-213 as to the 

relationship of an adult to the child. She expressed concerns that adults 

entering this country are motivated to make a false claim to have a familial 

relationship to an accompanying child or children, because the adults believe 

that such a relationship makes it less likely they will be detained.2 Under the 

circumstances in this case, the Immigration Judge found that the Notice to 

Appear was not properly served. 

Alternatively, the Immigration Judge found that it would violate the 

respondent’s due process rights to penalize her for failing to appear. 

Furthermore, she found that removability had not been established by clear, 

unequivocal, and convincing evidence. For these reasons, the Immigration 

Judge terminated the proceedings. The Service appealed. 

We dismissed the Service’s appeal, finding that given the age of the child 

at the time of apprehension by the Service and the lack of evidence to 

1 The Notice to Appear indicates that it was “[s]erved on subjects’ [sic] uncle” by personal 

service on August 24, 1999, by a Border Patrol agent in Harlingen, Texas. Both that 

document and the Form I-213 identify the person claiming to be the respondent’s uncle by the 

same name and alien number. 

2 The Immigration Judge took administrative notice that “[b]ecause it is the practice of the 

Service in this part of the country to release without requiring payment of any type of bond 

adult and juveniles who are traveling together, it is not at all unusual for adults to falsely claim 

that children who are arrested with them are their relatives when, in fact, they are not.” See 

also United States v. Cabrera, 288 F.3d 163 (5th Cir. 2002) (describing a child-rental scheme 

based on the Border Patrol policy of returning families with children to Mexico, rather than 

detaining them and charging them with illegal entry). 

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establish the identity of the person who signed the charging document, the 

Immigration Judge did not err in finding it “fundamentally unfair” to enter an 

in absentia order of removal based on the evidence in the record.3 

II. ISSUES 

Two issues are presented in this motion for reconsideration: (1) whether 

the Service established by clear, unequivocal, and convincing evidence that 

the Notice to Appear and hearing notice letters were properly provided to the 

respondent, as required by the Immigration and Nationality Act and the 

regulations; and (2) whether the Service proved that the respondent was 

removable as charged. 

III. ANALYSIS 

We first address whether the Notice to Appear was properly served on the 

respondent. The Service contends that the Immigration Judge should have 

entered an in absentia order in this case. Section 240(b)(5)(A) of the Act, 

8 U.S.C. § 1229a(b)(5)(A) (2000), the statutory provision governing in 

absentia orders, provides, in pertinent part, as follows: 

Any alien who, after written notice required under paragraph (1) or (2) of section 239(a) 

has been provided to the alien or the alien’s counsel of record, does not attend a proceeding 

under this section, shall be ordered removed in absentia if the Service establishes by clear, 

unequivocal, and convincing evidence that the written notice was so provided and that the 

alien is removable (as defined in subsection (e)(2) of this section). 

Under the statute, the first question to be addressed is whether there was 

“clear, unequivocal, and convincing evidence” that the Service provided the 

written notice required under section 239(a)(1) of the Act, 8 U.S.C. 

§ 1229(a)(1) (2000). Under section 239(a)(1) the “notice to appear” must be 

given “in person to the alien (or, if personal service is not practicable, through 

service by mail to the alien or to the alien’s counsel of record, if any).” 

Section 239(c) provides that “[s]ervice by mail under this section shall be 

sufficient if there is proof of attempted delivery to the last address provided 

by the alien in accordance with subsection (a)(1)(F) of this section.”4 

The regulations provide specific instructions for service of a notice to 

appear in the case of a minor under 14 years of age. Such service “shall be 

made upon the person with whom . . . the minor resides; whenever possible, 

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

friend.” 8 C.F.R. § 103.5a(c)(2)(ii) (2002); see also 8 C.F.R. § 236.2 (2002) 

3 As we affirmed the Immigration Judge on the issue of removability, we did not address 

whether there was proper service of the Notice to Appear and hearing notice letters. 

4 Section 239(a)(1)(F)(ii) requires that the notice to appear inform the alien of the obligation 

to provide the Attorney General with a written record of any change of address. 

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(providing that for respondents under the age of 14, the notice to appear shall 

be served in the manner prescribed in 8 C.F.R. § 239.1 upon the person or 

persons specified by 8 C.F.R. § 103.5a(c)). 

We find that in this case, personal service of the Notice to Appear on the 

person identified in the Form I-213 as the respondent’s uncle does not meet 

the regulatory requirement that service be made on the person with whom the 

respondent resides and, whenever possible, on the “near relative.” The Form 

I-213 states that the respondent was traveling to Detroit to reside with her 

family, lists the names of her parents, and gives a Detroit, Michigan, address. 

The question here is whether the regulation requires service on the 

respondent’s parents. We find that it does. 

In Matter of Amaya, 21 I&N Dec. 583 (BIA 1996), we recognized that the 

purpose of requiring service of a notice to appear on the person with whom 

a minor respondent resides was to direct service of the charging document 

“upon the person or persons who are most likely to be responsible for 

ensuring that an alien appears before the Immigration Court at the scheduled 

time.” Id. at 585. 

The Service has emphasized, and the courts have acknowledged, that 

parents have ultimate responsibility in cases involving minor respondents. In 

the case of Elian Gonzalez, for example, the Service stated that 6-year-old 

children “lack the capacity to sign and to submit personally an application for 

asylum” and, instead, “must be represented by an adult in immigration 

matters.” Gonzalez v. Reno, 212 F.3d 1338, 1349-50 (11th Cir.), cert. 

denied, 530 U.S. 1270 (2000). Furthermore, the Service concluded that 

“absent special circumstances, the only proper adult to represent a 

six-year-old child is the child’s parent.” Id. at 1350. The United States 

Court of Appeals for the Eleventh Circuit found this approach was a 

reasonable policy choice in light of the statutory scheme. Id. at 1351. 

The regulations governing service of a notice to appear on a minor 

respondent do not explicitly require service on the parent or parents in all 

circumstances. If a minor respondent’s parents are not present in this country, 

service on an uncle or other near relative accompanying the child may 

suffice.5 However, when it appears that the minor child will be residing with 

her parents in this country, as in this case, the regulation requires service on 

the parents, whenever possible, in addition to service that may be made on an 

accompanying adult or more distant relative.6 Therefore, under the facts in 

5 The Form I-213 contains only a conclusory statement that the adult with whom the 

respondent was apprehended was her uncle. The Immigration Judge indicated that she had 

“some doubts” as to whether the person was, in fact, the respondent’s uncle. 

6 By our decision today, we do not mean to discourage personal service of a notice to appear 

on an adult relative accompanying a minor child. Quite the contrary, we find that the Service 

acted properly and prudently in serving the Notice to Appear on the respondent’s uncle in this 

(continued...) 

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this case, we find that the Immigration Judge correctly determined that the 

Service failed to demonstrate clear, unequivocal, and convincing evidence of 

proper service of the Notice to Appear. 

Having found that the Immigration Judge correctly terminated proceedings 

for lack of proper service of the Notice to Appear, we need not reach the 

other questions raised in this case. 

ORDER: The motion to reconsider en banc by the Immigration and 

Naturalization Service is granted. Upon reconsideration, we affirm the result 

reached in our prior decision. 

CONCURRING OPINION: Cecelia M. Espenoza, Board Member, in 

which Paul Wickham Schmidt, Anthony C. Moscato, Noel Ann Brennan, 

and Juan P. Osuna, Board Members, joined 

I respectfully concur. 

Although I concur with the majority’s determination that the Immigration 

Judge did not err in terminating this case, I would address the issue of the 

reliability of the Record of Deportable/Inadmissible Alien (Form I-213) when 

the information comes through a 7-year-old child. I would find that the 

information contained in the Form I-213 was not sufficient in the absence of 

a determination that the child was able to understand and relate that 

information, free from undue influence.

 In order to enter an in absentia order, an Immigration Judge must find 

“clear, unequivocal, and convincing evidence” that the respondent is 

removable. Section 240(b)(5) of the Immigration and Nationality Act, 

8 U.S.C. § 1229a(b)(5) (2000); 8 C.F.R. § 3.26(c)(1) (2002). As a general 

rule, the Form I-213 is inherently reliable and, in the absence of indicia of 

unreliability, may be used to establish that an absent respondent is an alien 

subject to removal from the United States. See Matter of Ponce-Hernandez, 

22 I&N Dec. 784 (BIA 1999); see also Bustos-Torres v. INS, 898 F.2d 1053 

(5th Cir. 1990) (involving an in absentia order entered against an adult 

respondent). 

As the Immigration Judge noted, this case is distinguishable from Matter 

of Ponce-Hernandez, supra. The alien in that case was 15 years of age at the 

time of his apprehension. We considered the age of the respondent in 

Ponce-Hernandez in determining that reliance on the Form I-213 in that case 

was fundamentally fair and that the information on the form was inherently 

trustworthy. We remarked that “there is neither an assertion nor a reason to 

believe that the respondent’s age impeded an accurate exchange of basic 

biographical information between the respondent and the border patrol agent.” 

Id. at 787. We noted that “[g]iven the basic nature of the information in the 

6 (...continued)

case. The regulation, however, also requires service on the respondent’s parents. 

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Form I-213 and the age of the respondent, there is no adequate basis to bar 

reliance on the uncontested factual information reflected therein.” Id. at 786 

n.3 (emphasis added). Although Matter of Ponce-Hernandez establishes a 

general presumption of reliability, we did not there hold that any statement in 

a Form I-213, however conclusory, is sufficient to meet the burden of proof 

as to alienage. Instead, we emphasized that the Form I-213 in that case 

provided “detailed information” and indicated that the respondent was the 

source of that information. 

The very young age of the respondent in this case raises obvious questions 

as to the inherent reliability of the information in the Form I-213 that were not 

present in Ponce-Hernandez. Very few 7-year-old children have the 

intelligence and understanding to provide accurate information regarding 

alienage, immigration status, and manner of entry. Even those who might 

ordinarily be able to communicate such information may be prone to 

suggestion when apprehended and questioned by Service officers concerning 

these events. Furthermore, some young children may have been instructed by 

the adults with whom they are traveling to provide false information to the 

Service. See, e.g., United States v. Cabrera, 288 F.3d 163 (5th Cir. 2002) 

(describing a scheme in which parents were paid to have their very young 

children accompany immigrants across the border because the Border Patrol 

had a policy of returning families with young children to Mexico rather than 

detaining them and charging them with illegal entry). 

For these reasons, I agree with the Immigration Judge that in the case of a 

child as young as the respondent in this case, special care should be taken to 

explain the source and reliability of the information in the Form I-213. See 

Matter of Amaya, supra, at 586-87 (stating that an Immigration Judge must 

make a comprehensive inquiry into whether a minor respondent’s testimony 

at a removal hearing is reliable and make sure that the respondent understands 

any facts that are admitted). This requirement is consistent with traditional 

rules of evidence that set standards for testing the veracity of testimony from 

children younger than 10 years of age. I acknowledge that this is not an area 

of the law in which hard and fast rules as to the age of the child or the content 

of the Form I-213 would prove useful. See, e.g., Idaho v. Wright, 497 U.S. 

805, 822 (1990) (declining to “endorse a mechanical test” for determining 

reliability of hearsay statements made by a child witness in a child sexual 

abuse case, but identifying factors that may be considered). However, it 

would be helpful, when information in a Form I-213 is attributed to a young 

child, to include a description of the circumstances of the interview, as well 

as an assessment of the child’s willingness and capacity to provide the 

information. When there are others in the detained group who claim to be 

related to the child, it would also be useful to indicate whether the 

information provided by the child corresponds to the accounts of the others 

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in the group, particularly those claiming to be close relatives, and whether any 

identification documents corroborate the claimed relationship. 

The Immigration Judge found it troubling that although the respondent 

“supposedly was arrested with several family members at the time of her 

arrest by the Service, there is no indication in the I-213 that any information 

contained therein was obtained from anyone other than [the respondent].” In 

addition, there is no evidence regarding the nature of the questioning that 

generated the information contained in the Form I-213. The Form I-213 in this 

case attributes most of the information therein to a 7-year-old child. It then 

states that one of the adults in the group is the respondent’s uncle but does 

not explain the source of that information. I am not persuaded that on the 

facts of this case, the Immigration Judge erred in finding that the information 

in the Form I-213, without more, lacked sufficient indicia of reliability to 

support a finding that the respondent was removable by “clear, unequivocal, 

and convincing” evidence. Therefore, I would have sustained the Immigration 

Judge’s determination that the facts do not support a finding that the Form 

I-213 in this case has the indicia of reliability to support removability. 

Consequently, I would reach this issue, distinguish the facts of this case 

from Matter of Gomez-Gomez, 23 I&N Dec. 522, 524 (BIA 2002) 

(acknowledging that principles of special care exist when information is 

obtained from a minor respondent), and affirm the result reached in the prior 

decision on this basis as well. 

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