Professional Documents
Culture Documents
The parties agree that the BIA's decision rests upon the
immigration
IV 1992).
country unlawfully,
officer.
See 8 U.S.C.
___
that
rules and
of the Immigration
by an
own
without inspection
such a finding.
C.F.R.
practices, could
properly consider
the evidence
questions
several
that
other
hearing.
information
in the
Order
presenting
to
he was
questions
Show
Davila-Bardales was
through the
then
These
posed
individuals
immigration
indicating that
the IJ
IJ
to petitioner
the
judge)
at
the
were
all
based
on
Cause
(the
deportable.1
a "native and
OSC),
The
form
IJ asked
citizen of
(and
Peru,"
on or
____________________
1The OSC is reproduced in Appendix A hereto.
3
then under the age of 16, was not represented by counsel, nor was
a
guardian, relative,
hearing.
or friend
present to
advise him
at the
8 C.F.R.
242.16(b).
this regulation
second set
of
the immigration
to further
evidentiary items
hearing consists of
questions that
Davila-Bardales
form,
contained in
called
the IJ
the
the petitioner's
asked after
he (the
form
I-213,2
which
is
After handing
Davila-Bardales
citizen of Peru,"
that Davila-
In response,
"not
"everything is correct."
We are not certain
rely upon
____________________
2This form is reproduced in Appendix B hereto.
4
this
statement
("everything
deportability.
very
same
that
without
important rights
compelling
are at stake.
difference
between
as
itself
cannot do so
prevents
substance
functional
correct")
regulation
petitioner's
over
In any
is
it
from
showing
due to the
relying
on
particularly
So it is here:
asking
when
we perceive no
petitioner
whether
the
allegations
allegations
in
perceive
no
distinction.
the
form
compelling
Hence,
I-213 are
reason
petitioner's
true;
for
and,
making
statement,
to
the
IJ
by
an "unrepresented
moreover,
an
we
artificial
considered
as
deportability"
respondent . . . under
age
16" who
friend,"
8 C.F.R.
evidence at
the
was "not
same
different
accompanied by
242.16(b), and,
the hearing.
Simply
allegations are
thus,
relative, or
not admissible
as
accurate,
a guardian,
but
reading
them from
daunted, the
INS
points to
third kind
of
That
Border
Patrol officer.
According to
petitioner,
this
little
Spanish," and
country, before an
who (petitioner
says)
"hit" him
"in the
face."
We
quoted
agree with
INS that
the regulation,
hearing
the
and
in context,
the
IJ's
regulation we
to this evidence.
seems to
acceptance
the
refer to the
of
an
have
After all,
immigration
"admission"
of
made
See 8 C.F.R.
___
242.16(b).3
Nonetheless, the
considerable
skepticism
BIA, in
about
the
has expressed
of
similar
and
under
the
age
of
sixteen.
By
____________________
3The regulation provides in pertinent part:
The special inquiry officer shall require the
respondent to plead to the order to show
cause by stating whether he admits or denies
the factual allegations and his deportability
under the charges contained therein.
If the
respondent admits the factual allegations and
admits his deportability under the charges
and the special inquiry officer is satisfied
that no issues of law or fact remain, the
special inquiry officer may determine that
the
deportability
as charged
has been
established
by
the
admissions of
the
respondent.
The special inquiry officer
shall
not
accept
an
admission
of
deportability
from
an
unrepresented
respondent who is incompetent or under age 16
and
is not accompanied
by a guardian,
relative, or friend . . . .
When, pursuant
to this paragraph,
the special
inquiry
officer may not accept an
admission of
deportability, he shall direct a hearing on
the issues.
8 C.F.R.
242.16(b).
6
way
of
illustration, it
has said
such "statements
_________________
confessions
allegedly
made
by
an
_____________________________________________
unaccompanied minor under 16
during his
_____________________________________________
interview will be treated
as inherently
_____________________________________________
suspect. This does not mean that in a proper
_______
case a minor's own admissions are not binding
upon him.
If a minor is of sufficient age
and discretion to make him
a competent
witness, then he is competent to tell the
truth against himself in court, and also
competent
to tell the
truth by making
admissions against himself outside of court.
is more,
on the
very day
the BIA
decided this
based on alleged
admissions during
the
interrogation of an unaccompanied minor, the
___
Service should present evidence from the
_____________________________________________
arresting officers in order to demonstrate
___________________
that the interview was conducted in a noncoercive environment and that the respondent
was competent to respond to the questions
posed to him.
In re Garcia, No. A70-006-067,
_____________
slip op. at
3, 5 (BIA
Aug. 17,
do
not
see
how
the
BIA
can
reconcile
these
statements,
The
at
matter
circumstances
involves
hand
sort
of
It
a midnight
seems
Border
to
present
Patrol
exactly
the
investigation, an
underage
abuse.
Yet, here,
arresting officers.
carefully
records do
no evidence from
not indicate
that it
of form I-213.
Nor
Hernandez-Jimenez, treat
_________________
(an
Its
unaccompanied
in the words
minor) as
"inherently
8
in
by Davila-Bardales
suspect."
And
as a
crowning
at
the
hearing,
does
not
discuss
the integrity
or
agency
"react
similarly
creation
of
identical
this
"conflicting
lines
agency from
of
precedent
explained before, is
in the
governing
the
NLRB, 884
____
The purpose of
awareness
change."
EPA, 889
___
doctrine, as we have
conscious
it does prohibit an
agency itself
regulations
situation."
F.2d 34, 37
interpret
adopting significantly
or
of,
and
consideration of
the
need
for,
is not
to
announced a precedent,
say
that
must forever
an
agency,
hew to it.
once
it
has
Experience
is
freedom
precedents
to
in
circumstances.
(1991);
refine,
the
See
___
reformulate,
light
Rust
____
of
new
v. Sullivan,
________
and
even
insights
500
U.S.
reverse
and
173,
their
changed
186-87
If an
administrative
agency
decides to
depart
squarely
and explain
why
the
departure
is reasonable.
See
___
interrogation
and any
consequent
unrepresented
persons
is important.
zigzag course is
has failed to
beaten path).
from its
later decision
patrol
by underage,
In adjudicating
to have blazed
own
Davila-
a new
trail
prior precedent.
This
explain why it is
acknowledge in the
admissions made
BIA appears
veers significantly
even to
detouring from
In light
to the BIA so that it may focus upon the matter and either adhere
to its
position in Hernandez-Jimenez
_________________
and Garcia, or
______
relate the
mention
few
other
points.
For
one
thing,
formally in the
designated by the
in the technical
Leal-Rodriguez
______________
category of "selected
Board," so they do
sense.
v.
See 8 C.F.R.
___
INS, 990
___
F.2d
decisions
939,
946
(7th
Cir.
1993).
However, the INS has not mentioned that point in this appeal, nor
does it argue
that it
positions in
its
(in our
view,
with a
complete
and utter
lack
of
on
the
10
success)
facts.
we
will
decision.
to
distinguish
Hernandez-Jimenez and
_________________
Garcia
______
adopt
See, e.g.,
___ ____
it as
basis
for
sustaining
the BIA's
F.2d 83,
86
(1st Cir.
1990) (holding
that arguments
not raised
in the
of a government agency
differently
in
different
arbitrary
permit
the
semblance
kinds of
of
concerns
consistency doctrine
the mere
to
the
fact of
Put
bluntly, we see
nonpublication should
contemporary)
cases, without
Hence, we do
hand, can
that
reason why
contrary
without any
precisely the
action
an agency to take a
flatly
the prospect
no
cases,
raises
agency
and
plausible explanation,
about
even if Hernandez-Jimenez
_________________
it
set
explaining
out
why it
earlier
(yet
is doing
so.4
circumstances at
not to
publish
____________________
4In this vein, we note that the
that
petitioner
further
has
INS argues,
for the
proceedings
are
admitted his
unlawful
that
pointless
materials.
on this
because
entry once
again
We are
the
in an
uncertain,
preparation of
(stating
first time
an
asylum
See, e.g., 8
___ ____
C.F.R.
application "shall
not
242.17(e)
be
held
which
the
deportability").
respondent
does
not
admit
his
alienage
to
case
or
of both
Cf. Unemployment Comp. Comm'n v. Aragon, 329 U.S. 143, 155 (1946)
___ _________________________
______
("A
reviewing court
aside
the
usurps the
administrative
determination
upon
it sets
ground
not
for its action."); Sullivan v. CIA, 992 F.2d 1249, 1256 (1st Cir.
________
___
1993) (refusing
to consider
for possible
relevant to
we
need
grant
go no
further.
the petition
for
So ordered.
So ordered.
__________
the reasons
review,
set forth
vacate the
BIA's
For
13