U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - NYC

26 Federal Plaza, 11th Floor
New York, NY 10278

Date of this notice: 8/31/2016

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

Don.ru,_ C

lYv'l)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.
Kendall-Clark, Molly
O'Herron, Margaret M

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: L-D-M-G-, AXXX XXX 834 (BIA Aug. 31, 2016)

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Berkowitz, Brynde Rivkah, Esq.

Law Office of Brynde Berkowitz, PC
10 Brower Avenue
Woodmere, NY 11598

,,

U.S. Departm'ent of Justice

Executive Office for Immigration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 22041

File: 834 - New York, NY

Date:

Inre:LalD-

AUG 3 t 2016

APPEAL
ON BEHALF OF RESPONDENT: Brynde Rivkah Berkowitz, Esquire
ON BEHALF OF DHS:

Carol Moore
Assistant Chief Counsel

CHARGE:
Notice: Sec.

212(a)(6)(A)(i), l&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Termination

The respondent is a minor who is represented for the first time on appeal. The Department of
Homeland Security ("DHS") appeals from the Immigration Judge's July 6, 2015, decision
terminating the respondent's removal proceedings. The respondent, through counsel, opposes
the appeal. The appeal will be sustained, and the record will be remanded for further
proceedings.
We review the findings of fact made by the Immigration Judge, including the determination
of credibility, for clear error. 8 C.F .R. 1003.1 (d)(3)(i). We review all other issues, including
questions of judgment, discretion, and law, de novo. 8 C.F.R. 1003. l(d)(3)(ii).
The Immigration Judge terminated removal proceedings upon concluding that there was
insufficient evidence of proper service of the Notice to Appear (Form I-862) ("NTA") on
May 16, 2014 (I.J. at 6-8; Exh. 1). On appeal, the DHS argues that termination is improper
because the record demonstrates that it served the respondent's mother with the NTA on the
respondent's behalf on May 16, 2014, and that such service was sufficient given that, at that
time, the I-year-old respondent resided .with her mother. The DHS also argues termination is
improper because the respondent did not show that she was prejudiced by any alleged defect in
service and because, even assuming improper service and prejudice, the proper remedy was to
adjourn for DHS to perfect service of the NTA rather than terminate proceedings. The
respondent argues that the record is insufficient to show that the respondent was properly served
on May 16, 2014; that, in any event, service on the respondent's mother was ineffective by the
time of her master calendar hearing; that she was prejudiced by the lack of effective service; and
that termination is the proper outcome because the DHS had the opportunity to perfect service
but failed to do so before the July 6, 2015, hearing.
Cite as: L-D-M-G-, AXXX XXX 834 (BIA Aug. 31, 2016)

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IN REMOVAL PROCEEDINGS

By the time of the respondent's hearing on June 10, 2015, the respondent was in the custody
of the New York Department of Social Services and no longer resided with her mother due to
allegations of child abuse and neglect (I.J. at 4-5; Tr. at 3-4). We agree with the Immigration
Judge's determination that, under the circumstances of this case, service on the respondent's
mother was insufficient and that the DHS should have perfected service by re-serving the NTA
on the respondent's custodian at the Department of Social Services or any appointed guardian
(I.J. at 6-7). Matter of E-S-1-, supra, at 143 ("Whenever the DHS learns that a respondent has a
court-appointed guardian, the DHS should serve that guardian, in addition to anyone else
served."). While the DHS states that it served a courtesy copy of the NTA on Ms. Brynde
Berkowitz, the respondent's family court attorney, Ms. Berkowitz was not the respondent's
counsel of record in immigration proceedings at that time (I.J. at 7-8). Moreover, "while notice
to counsel ordinarily constitutes notice to the alien, the regulation governing service on aliens
who lack competency requires service on a responsible party with whom the respondent
resides." 1 Id.; see also 8 C.F.R. 103. 8(c)(2)(ii). Service on counsel would not, therefore,
obviate the need to also serve a responsible person with whom the respondent resides. Matter of
E-S-1-, supra, at 143.
We will remand to give the DHS an opportunity to perfect service. While the Immigration
Judge raised the issue at the June 10, 2015, hearing, the matter was not resolved and the record
does not reflect that the DHS was afforded the opportunity to re-serve any party with the NTA
(Tr. at 8, 33, 45). We will remand for the DHS to properly re-serve the NTA on a responsible
person with whom the respondent resides. See Matter of E-S-1-, supra, at 144-45 (stating that if
the DHS did not. properly serve the respondent where indicia of incompetency were either
1

The Immigration Judge found that, due to the respondent's young age, the respondent is not
only a minor but also lacked competency, and the DHS does not challenge this finding (I.J. at 7).

2
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We need not decide whether the respondent was properly served on May 16, 2014, because
we conclude that, given the particular circumstances in this case, service on the respondent's
mother was not sufficient by the time of the respondent's June and July 2015 hearings. Under
the regulations, "in the case of a minor under 14 years of age, 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. I03.8(c)(2)(ii). Additionally, the
regulations provide that,in the case of a confined person, service shall be made on "the person in
charge of the institution or hospital in which he is confined, such service being deemed service
on the confined person." 8 C.F.R. 103.8(c)(2)(i); see also Matter of E-S-1-, 26 I&N Dec. 136,
139 (BIA 2013). The purpose of requiring service of an NTA on the person with whom the
minor respondent resides is 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." Matter ofAmaya, 21 I&N Dec. 583,585 (BIA 1996);
see also Matter of Mejia-Andino, 23 I&N Dec.533, 536 (BIA 2002). Service on a responsible
party in cases involving very young respondents also helps the DHS and the Immigration Court
identify someone who can assist the respondent so that proceedings can go forward. Matter of
E-S-1-, supra, at 142.

g34'
manifest or arose at a master calendar hearing that was held shortly after service of the NTA, the
Immigration Judge should grant a continuance to give the DHS time to effect proper service).

Accordingly, the record will be remanded for to provide the DHS an opportunity to perfect
service of the NTA.
ORDER: The appeal is sustained, and the Immigration Judge's decision terminating
proceedings is vacated.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new decision.

-
FOR THE BO

Counsel for the respondent requested a 30-day briefing extension, which was granted on
November 19, 2015. The respondent did not file a supplemental brief.

3
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Finally, we are not persuaded by the respondent's argument that the DHS's appeal should be
dismissed because its brief was not properly filed and served. "All briefs, filings, and motions
filed in conjunction with an appeal shall include proof of service on the opposing party."
8 C.F.R. I003.3(c)(l). Here, in accordance with the BIA Practice Manual, Chapter 3(d), the
DHS' s certificate of service contains the names of the parties served and their addresses, the date
of service, the means of service (regular mail), and the documents being served, and it is signed
by the person serving the documents. Counsel for the respondent acknowledges receipt, albeit
2
one day later than received by this Board. We therefore decline to dismiss the DHS's brief as
improperly filed and served.

File:834

July 6, 2015

In the Matter of
)
)
)
)

LIA DENNISSE MARTINEZ-GOMEZ

RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212(A)(6)(a)(I) of the Immigration and Nationality Act, as

amended, in that you are an alien present in the United States
without being admitted or paroled, or who arrived in the United
States at any time or place other than as designated by the
Attorney General.

APPLICATIONS:

Termination without prejudice.

ON BEHALF OF RESPONDENT: PRO SE

ON BEHALF OF OHS: GWEN LEIFER, Assistant Chief Counsel
Immigration and Customs Enforcement
26 Federal Plaza, Room 11-130
New York, NY 10278

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE

The respondent in these proceedings is an infant/child under the age of three.
She was born on July 26, 2012, and although she is unrepresented there is a very large
contingency of qualified professionals that are in Court today that are here as friends of
the Court.
1

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
NEW YORK, NEW YORK

This includes Ms. Brynde Berkowitz, she is an attorney for the respondent child
but she is an attorney in Family Court who has been duly appointed in the role to

courtesy to the Court and as a friend of the Court to apprise the Court of what has
transpired before the Family Court.
We also have Ms. Angelica Jenkins, supervising attorney for the Young Center
for Immigrant Children's Rights. She has appeared before this Court previously, on
June 10, 2015, and today and she has been here to continue in the process of
determining whether the Young Center would provide a child advocate for the
Immigration context of this piece.
We also have Ms. Maria Navarro, supervising attorney for Legal Aid Society.
She is representing the respondent's mother and not the respondent. Again, the
respondent is unrepresented.
The respondent's mother's name is Miriam Gomez-Osorio. Her A number is 206
700 227. As I understand it, the respondent's mother will be appearing at a Master
Calendar hearing coming up later in July before the Honorable Gabriel Videla at a
different facility also within New York's jurisdiction.
To continue, Ms. Lenni Benson, who is a professor at New York Law School and
is overseeing the Safe Passage Project, is also here. She has been clarifying various
legal issues to assist the Court and assist the individuals in Court.
We also have Ms. Astrid Avedissian from Justice AmeriCorps and she has
indicated that she may be in a position under the Justice AmeriCorps mandate to
represent the respondent in the future should the appropriate circumstances come to
fruition.
We also have Ms. Gomez from the Young Center as support and she is a staff

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advocate in the best interests of this child. She has appeared before this Court as a

attorney for the Young Center. We have Ms. Silvas, an intern for Ms. Berkowitz. We
have Mr. Clarr, an intern for Ms. Berkowitz. We have Mr. Doran, an associate with Ms.

here. We have Ms. Heckwith from the Nassau County Department of Social Services;
she is a su pervisor for foster care. We have Ms. Perdella from Nassau County
Department of Social Services; she is a case worker. We have Ms. Garcia, who is a
law intern for Legal Aid Society. We have the respondent's mother, Miriam Gomez
Osorio. We also have law enforcement personnel from the Department of Homeland
Security. This Court deeply appreciates all of the individuals that have appeared in
Court as well as Department of Homeland Security's efforts to engage the Young
Center. If I forgot someone's participation or assistance, I apologize.
This case has gotten very expedited treatment for obvious reasons, both the
respondent and her mother are in custody at this point. I am going to turn to the
exhibits in the record at this point just as a nutshell overview of what is happening. The
respondent, who is a child under three, is in Department of Social Services care at this
point. Ms. Berkowitz is working very hard and has explained to the Court various steps
she has taken before Judge Dane in the Family Court to assist her client, the
respondent, in that context. She is not the record attorney in the Immigration context
and therefore she has no obligation under the Immigration regulations to receive service
and the like for the respondent. This case is unprecedented in my view in terms of that
issue; however, it is always important in any case to examine service of the charging
document.
First, I will address the record evidence. Exhibit 1 that was marked for I D
purposes only is the Notice to Appear that i s dated May 1 6, 201 4. There was an
attempted in-person service of that charging document also on May 1 6, 201 4. The

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Berkowitz's office. We have Ms. Hawkins, who is a social worker for Legal Aid Society

reason why I say attempt is because there is a stamp on that charging document
indicating subject refused to sign. In light of the fact that the subject, I presume, is the

accept her signature as com petent service. I will admit the Notice to Appear for
purposes of this decision. Turning to the next item in the record is Group Exhibit 2 for
ID , which is the Department of Homeland Security's submission beginning with an 1-2 1 3
and a birth certificate as well a s USCIS Form 1-797-C , notice of action, and this
concerns biometrics, which would not be necessary given the respondent's age, and
pertains to an 1-589 filing and the like. The 1-21 3, although it does sufficiently delineate
a date of birth and country of birth as Honduras and so on , it also clarifies that the
respondent is of tender age and way below 1 4 years of age. It also explains the
mother's situation in part. I will also accept for purposes of this decision this filing as
Group Exhibit 2. Next we have as Exhibit 3, which was previously accepted at the last
hearing on J une 1 0, 201 5, a cover letter from Ms. Berkowitz explaining that she has
been appointed by the Honorable Edm und Dane of the Nassau Family Court to
represent the respondent child in that context. We also have a further submission from
the Department of Homeland Security, namely the charging document, addressed to
Ms. Berkowitz which Ms. Berkowitz indicated she did not receive as of today's date, but
Ms. Leifer has provided a courtesy copy for Ms. Berkowitz. That will be Exhibit 4. I am
going to mark an additional document; I asked all of the individuals in the Courtroom to
identify themselves and their agency affiliation. This might be helpful for the record.
will mark this item , which everyone has, as Exhibit 5 in this record. And with that, I
believe those are all of the documents that the Court has.
Just to complete some of the procedural history in this case, when we were last
here on June 10, 2015, it was represented that the child was in the Department of
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respondent who is under the age of three, I would not expect her to sign nor would I

Social Services' custody and the respondent's mother was also in custody and that
there was an effort or steps taken by the respondent's biological father to reclaim and

not yet made any contact with New York Family Court for custody purposes. It was also
clear at that point that the Legal Aid Society was representing the respondent's mother
and that there would be a conflict raised if the Legal Aid Society were to step in in any
formal way to represent the child; although it was also indicated that there was a
reasonable fear interview scheduled for the mother's case and clearly the child would
be a derivative if the mother's claim was at all favorably disposed of. We have an
update today in terms of all of these issues.
A third very important issue that was raised last time was appointment of a child
advocate. Although both DHS and EOIR have independently sought out appointment of
a child advocate through ORR to the Young Center, that has not been favorably
advanced. In fact, EOIR was notified perhaps earlier on or before June 1 9 that ORR
declined to advance the issue of a child advocate with the Young Center and now I am
told that that issue is still not favorably resolved.
I have also been given a very thorough description by Ms. Berkowitz of what is
happening at the Fam ily Court. The rendition by Ms. Berkowitz speaks for itself and I
am going to concentrate the rest of this decision on the service issue of the Notice to
Appear.
It suffices to say that Ms. Berkowitz has been making Herculean efforts on behalf
of the respondent child, both in terms of advancing reunification, which is a primary
goal, and also seeing to it that the respondent's mother gets effective counseling and
the like and recognition, and also assisting the respondent's biological father to perhaps
achieve standing and pursue the custody issues for himself.

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gain custody of the child through the Hondu ran consulate. At that point, the father had

ANALYSIS
This Court is under an obligation to proceed with pleading and to address the

regards. NT A's should be closely examined, particularly in a case where a child is

under 14 years of age and in this case, that does apply. The child he re is less than
three years old and therefore I am going to focus my attention on the charging
document, which I must, and looking at Exhibit 1, I see that there was a refusal to sign.
The respondent's mother did not sign this charging document. The respondent certainly
cannot sign this charging document. The conservator or the head of the agency of
Department of Social Services personnel that wou ld be responsible for the child did not
sign this charging document. In fact, I do not know who signed this charging document
because the charging document has a scribble in the spot where a signature is
supposed to be and no writing beneath it to indicate who was served this charg ing
document.
Looking at the 1-213, I do have clarity in terms of who produced the charging
document; that would be a Border Patrol agent by the name of Juan Rosas, who is also
the maker of the 1-213. Although there is a note on the 1-2 13 that all pertinent
information was obtained and served upon the juvenile mother, under the
circumstances of this case, particularly when we have indications that the respondent's
mother was in a very difficult situation and has recently consented to neglect, this Court
will not accept service on the respondent's mother who remains in Government custody
at this point. I also have an indication on the 1-2 13 that all q uestioning regarding the
subject was directed to and answered by the respondent's mother, but I do not have a
facially valid signed q uestion and answer affidavit or anything along those lines. I do
have j ust the summary here. I do not know whether that questioning was conducted in
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charging document and to make sure that the charging document is proper in all

English or in Spanish or any other language. I do not have details of that. I do have a
reasonably detailed narrative in the 1-21 3 , however, and I will get to that in a moment.

regulations, and I also note that an Immigration Judge should take corrective action
short of termination of proceedings that has been along the case. See Matter of
Hernandez, 21 l&N Dec. 224, 228 (BIA 1996) and even before that Matter of Garcia
Flores, 1 7 l &N Dec. 325, 329 (8 IA 1980) (holding that an alien must demonstrate that
he or she has been prejudiced by a violation of procedural rule or regulation before
proceedings will be invalidated).
8 C. F.R. 1 03.8 discusses service of decisions and other notices and talks about
personal service and it also discusses service on an attorney; however, in this case, the
respondent is unrepresented so the provision regarding service on an attorney does not
apply. What does apply is the provision regarding service on a minor, service on
someone who is incompetent and service on someone who is confined. The
respondent is not only a minor, due to her age she would be considered incompetent for
this purpose and she is also in the custody of the Department of Social Services.
Therefore, the proper person or persons that should have been served would be a
person in the institution holding the child and the person that would be served would be
the person in charge of the facility. This is particularly important and outlined in the
regulations as to individuals and minors under the age of 14 . This is not discretionary;
this is mandatory under the regulations and the provision indicates it shall be made
upon the person with whom the incompetent or m inor resides. Since in this case the
respondent does not reside with the mother, the mother would certainly not be a
competent individual to receive nor does Ms. Berkowitz represent the respondent, so
under our regulations she would not be a competent person to receive. The statute
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My q uestion to be answered is, was service proper under 8 C.F.R. of the

does contemplate service on counsel . INA Section 239 indicates that a Notice to
Appear may be mailed to the individual or to the individual's counsel of record and

Immigration context and not counsel in an independent Family Court matter.

The purpose of serving the Notice to Appear is to give the individual respondent
alien specifics as to the nature of the proceeding, the legal authority under which a
proceeding is going to be cond ucted, and to provide the individual with opportunities
and rights bestowed upon then, such as the right to be represented by counsel, the right
to present evidence, and so on. Seeing that the respondent is a child under the age of
three, none of those provisions have been effectuated by service of this charging
document on Ms. Berkowitz.
In terms of service by mail, service by mail is effective if there is proof of
attempted delivery to the last known address. Again, the respondent's address is in the
care of the Department of Social Services and therefore service by mail, see Exhibit 4,
to Ms. Berkowitz is ineffective. This brings us to an interesting case by the Board,
Matter of Mejia-Andino, 23 l&N Dec. 533 (BIA 2002), which held that service of the NTA
should be with the parent if available in the United States. Under the circumstances of
this case, I would find that service on the respondent's mother would be inappropriate
under the circumstances of this particular case. Interestingly, in that Board decision,
because the parent was not served, that service was not effective.
There are numerous decisions that indicate that a child, a minor of this tender
age, cannot properly concede service and cannot properly concede the charge. In fact,
the Board has long held that an admission of removability from an unrepresented
respondent who is under the age of 1 8 will not be accepted. See Matter of Amaya
Castro, 21 l &N Dec. 583 (BIA 1 996) (it is presumed that a minor is unable to determine

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counsel of record is a term of art and does only encompass counsel of record in the

whether a charge applies to him or her and as such the m inor's concession of
removability cannot be accepted). The Board has held that an Immigration Court may

the minor and unaccompanied status should be taken into consideration. Other factors
should be taken in consideration as well.
Taking all of these issues into account, this Court determines that the charging
document has not been properly served in this case and although OHS may take
emu lative action, including issuing a new charging document and properly serving it.
That is not for this Court to decide nor is this Court considering any aspect of
prosecutorial d iscretion. This Court has no authority over prosecutorial discretion and
the like. This Cou rt is also not swayed by all of the sympathetic factors in this case.
This Court is simply looking at this charging document and seeing whether it meets the
standards under the statute and finding that it does not, and therefore terminating these
proceedings without prejudice.
CONCLUSION OF THE COURT
The Cou rt does not sustain the charge under 2 12(a)(6)(A) and terminates these
proceedings without prejudice.

Please see the next page for electronic

signature

834

RANDA ZAGZOUG
Immigration Judge

July 6, 2015

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accept a factual admission made by a minor under the age of 16; however, the age of

,,..

/ /s / /
Immi g r a t i on Judge RANDA ZAGZOUG

10

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ZagzougR on S eptember 2 , 2 0 1 5 at 1 1 : 1 2 PM GMT

J u ly 6, 20 1 5