Davila-Bardales v. INS

[FOR COPIES OF OPINION WITH APPENDIX, CONTACT CLERK'S OFFICE FOR
THE FIRST CIRCUIT COURT OF APPEALS. APPENDIX IS NOT FOUND ON
THIS COPY.]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2124

RICARDO DAVILA-BARDALES,
Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Breyer,* Chief Judge.

Torruella and Selya, Circuit Judges.

Victoria Lewis with whom Greater Boston Legal Services was

on brief for petitioner.
Iris Gomez, Massachusetts Law Reform Institute, on brief for

Massachusetts Immigrant and Refugee Advocacy Coalition, Anthony

J. DeMarco on brief for Children's Law Center of Massachusetts,

Maureen O'Sullivan, Kaplan, O'Sullivan and Friedman, on brief for

National Immigration Project, American Immigration Lawyers
Association, and Texas Lawyers' Committee for Civil Rights Under
Law, amici curiae.
Donald E. Keener, Attorney, Office of Immigration

Litigation, Civil Division, Department of Justice, with whom
Frank W. Hunger, Assistant Attorney General, Civil Division, and

Robert Kendall, Jr., Assistant Director, were on brief for

respondent.

June 23, 1994

*Chief Judge Stephen Breyer heard oral argument in this matter
and participated in the drafting of the opinion, but did not

participate in issuance of the panel's opinion. The remaining
two panelists therefore issue this opinion pursuant to 28 U.S.C.
46(d).

SELYA, Circuit Judge. Ricardo Davila-Bardales asks us
SELYA, Circuit Judge.

to review a decision of the Board of Immigration Appeals (BIA) in

which the BIA affirmed an Immigration Judge's (IJ's) deportation

order. The parties agree that the BIA's decision rests upon the

IJ's finding that in late July of 1989 Davila-Bardales, then age

15, entered this country unlawfully, without inspection by an

immigration officer. See 8 U.S.C. 1251(a)(1)(B) (1988 & Supp.

IV 1992). The parties also agree that rules of the Immigration

and Naturalization Service (INS) require "clear, unequivocal and

convincing" evidentiary support for such a finding. 8 C.F.R.

242.14(a) (1993). They disagree about whether the INS, under its

own rules and practices, could properly consider the evidence

that showed unlawful entry in this case evidence that consists

primarily of Davila-Bardales's own statements and admissions.

The proof before the IJ featured petitioner's answers

to questions that the IJ posed directly to petitioner (and

several other individuals then before the judge) at the

immigration hearing. These questions were all based on

information in the Order to Show Cause (the OSC), a form

indicating that Davila-Bardales was deportable.1 The IJ asked

the petitioner whether he was a "native and citizen of Peru,"

whether he "entered the United States near Laredo, Texas, on or

about July 27, 1989," and whether he did so "through the river,

through the fence, or conceal[ing] [him]self in some way without

presenting [him]self to an Immigration Officer" for inspection.

1The OSC is reproduced in Appendix A hereto.

3

Davila-Bardales answered all these questions affirmatively.

The problem with this evidence is that Davila-Bardales,

then under the age of 16, was not represented by counsel, nor was

a guardian, relative, or friend present to advise him at the

hearing. An INS regulation says that an IJ

shall not accept an admission of
deportability from an unrepresented
respondent who is . . . under age 16 and is
not accompanied by a guardian, relative or
friend . . . .

8 C.F.R. 242.16(b). And, as the INS concedes, this regulation

removes the sting from these particular admissions.

A second set of evidentiary items contained in the

record of the immigration hearing consists of the petitioner's

answers to further questions that the IJ asked after he (the

judge) realized that petitioner's age and lack of representation

created a potential legal problem. At that point, the IJ showed

Davila-Bardales a form, called a form I-213,2 which is

apparently a record of an officer's interview of Davila-Bardales,

made soon after the Border Patrol apprehended him near Laredo on

the evening of his alleged entry. After handing Davila-Bardales

a copy of the form, the IJ pointed out that it said that Davila-

Bardales was "a native and citizen of Peru," who "last entered

the United States on July 27, 1989, near Laredo," and was "not

inspected at that time." In response, Davila-Bardales said that

"everything is correct."

We are not certain whether the INS means to rely upon

2This form is reproduced in Appendix B hereto.

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this statement ("everything is correct") as itself showing

deportability. In any event, the INS cannot do so due to the

very same regulation that prevents it from relying on

petitioner's responses to the OSC. Courts should not exalt form

over substance without compelling reason, particularly when

important rights are at stake. So it is here: we perceive no

functional difference between asking petitioner whether the

allegations in the OSC are true and asking him whether identical

allegations in the form I-213 are true; and, moreover, we

perceive no compelling reason for making an artificial

distinction. Hence, petitioner's statement, considered as

substantive evidence, would seem "an admission of deportability"

made to the IJ by an "unrepresented respondent . . . under

age 16" who was "not accompanied by a guardian, relative, or

friend," 8 C.F.R. 242.16(b), and, thus, not admissible as

evidence at the hearing. Simply asking Davila-Bardales whether

the same allegations are accurate, but reading them from a

different piece of paper, does not cure the basic legal defect

that mars the initial questioning.

Little daunted, the INS points to a third kind of

evidence admitted at the hearing: the I-213 form itself. That

form purports to memorialize an interview between Davila-Bardales

and a Border Patrol officer. According to petitioner, this

interview took place sometime after midnight at the "frontier" on

the day he entered this country, before an official who "spoke

little Spanish," and who (petitioner says) "hit" him "in the

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face."

We agree with the INS that the regulation we have

quoted does not explicitly apply to this evidence. After all,

the regulation, in context, seems to refer to the immigration

hearing and the IJ's acceptance of an "admission" of

deportability at that hearing. It says nothing about admissions

made at other times and under other circumstances. See 8 C.F.R.

242.16(b).3

Nonetheless, the BIA, in its case law, has expressed

considerable skepticism about the admissibility of similar

statements made to Border Patrol officers by persons who are both

unrepresented and under the age of sixteen. By way of

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).

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illustration, it has said the following about such "statements

made to an arresting officer during a custodial interrogation":

On its face, 8 C.F.R. 242.16(b) does
not bar statements made during custodial
interrogation. However, where the Service at
the deportation hearing seeks to meet their
burden of proof by introducing an admission
of deportability made by an unaccompanied
minor under 16 during his custodial
interrogation, to allow admission of these
statements circumvents the underlying intent
of the above-quoted regulation. If, pursuant

to 8 C.F.R. 242.16(b), an admission of

deportability by an unrepresented minor made

with all the procedural protections that

exist in a formal hearing before [an

immigration judge] lacks sufficient

trustworthiness to be admissible, then

statements made to an arresting officer

during a custodial interrogation are at least

of comparable untrustworthiness. Moreover,

the regulation recognizes that an
unaccompanied minor under 16 lacks sufficient
maturity to appreciate the significance of an
interrogation by a Service official and lacks
the capacity to evaluate the foreseeable
consequences of any responses provided, and
this recognition should be applicable even
during the initial stages of the Service's
investigative process.

While we acknowledge that the
regulations do not specifically require that

a minor be accompanied by a "guardian,
relative or friend" during a custodial
interview, we do find that any admissions or

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.

In re Hernandez-Jimenez, No. A29-988-097, slip op. at 6 (BIA Nov.

7

8, 1991) (emphasis supplied; citations omitted).

What is more, on the very day the BIA decided this

case, it stated in the course of deciding a different case that,

if the INS seeks to admit an I-213 form against a juvenile,

the circumstances surrounding the Service's
preparation of the Form I-213 must be

carefully examined to insure that alienage

has been properly established.

The BIA added that,

where the Service seeks to establish alienage
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 non-
coercive 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,

1993) (emphasis supplied).

We do not see how the BIA can reconcile these

statements, made in other cases, with its position in this case.

The matter at hand seems to present exactly the sort of

circumstances that the BIA, in those other cases, addressed. It

involves a midnight Border Patrol investigation, an underage

suspect, an absence of legal representation, and an allegation of

physical abuse. Yet, here, the INS presented no evidence from

the arresting officers. Its records do not indicate that it

carefully examined the circumstances surrounding the preparation

of form I-213. Nor did the IJ, in the words the BIA used in

Hernandez-Jimenez, treat the admissions made by Davila-Bardales

(an unaccompanied minor) as "inherently suspect." And as a

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crowning blow, the BIA's opinion in this case, albeit stating in

a conclusory fashion that petitioner understood the questions and

answers at the hearing, does not discuss the integrity or

reliability of the Border Patrol's interrogation.

Though the law does not require that all officials of a

large agency "react similarly or interpret regulations

identically" in every case, Puerto Rican Cement Co. v. EPA, 889

F.2d 292, 299 (1st Cir. 1989), it does prohibit an agency from

adopting significantly inconsistent policies that result in the

creation of "conflicting lines of precedent governing the

identical situation." Shaw's Supermarkets, Inc. v. NLRB, 884

F.2d 34, 37 (1st Cir. 1989) (citation omitted). The purpose of

this doctrine, as we have explained before, is "to prevent the

agency itself from significantly changing [its] policies without

conscious awareness of, and consideration of the need for,

change." Puerto Rican Cement Co., 889 F.2d at 299.

This is not to say that an agency, once it has

announced a precedent, must forever hew to it. Experience is

often the best teacher, and agencies retain a substantial measure

of freedom to refine, reformulate, and even reverse their

precedents in the light of new insights and changed

circumstances. See Rust v. Sullivan, 500 U.S. 173, 186-87

(1991); Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins.

Co., 463 U.S. 29, 42 (1983). However, the law demands a certain

orderliness. If an administrative agency decides to depart

significantly from its own precedent, it must confront the issue

9

squarely and explain why the departure is reasonable. See

Congreso de Uniones Industriales de Puerto Rico v. NLRB, 966 F.2d

36, 39 (1st Cir. 1992); Shaw's Supermarkets, 884 F.2d at 41.

The question of how the BIA will treat border patrol

interrogation and any consequent admissions made by underage,

unrepresented persons is important. In adjudicating Davila-

Bardales's status, the BIA appears to have blazed a new trail

that veers significantly from its own prior precedent. This

zigzag course is not open to an agency when, as now, the agency

has failed to explain why it is changing direction (or even to

acknowledge in the later decision that it is detouring from a

beaten path). See Shaw's Supermarkets, 884 F.2d at 36. In light

of the unavowed, unexplained deviation, we shall remand this case

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

reasons that make an alteration in that position appropriate.

We mention a few other points. For one thing,

Hernandez-Jimenez and Garcia apparently are unpublished decisions

and, thus, not formally in the category of "selected decisions

designated by the Board," so they do not constitute "precedent"

in the technical sense. See 8 C.F.R. 3.1(g) (1993); see also

Leal-Rodriguez v. INS, 990 F.2d 939, 946 (7th Cir. 1993).

However, the INS has not mentioned that point in this appeal, nor

does it argue that it may adopt inconsistent positions in its

unpublished decisions; instead, it spends five pages of its brief

attempting (in our view, with a complete and utter lack of

10

success) to distinguish Hernandez-Jimenez and Garcia on the

facts. Because the INS has chosen not to rely on this argument,

we will not adopt it as a basis for sustaining the BIA's

decision. See, e.g., Sandstrom v. Chemlawn Corp., 904 F.2d 83,

86 (1st Cir. 1990) (holding that arguments not raised in the

briefs are waived).

We note, moreover, that even if Hernandez-Jimenez and

Garcia are not "precedent" in the technical sense, the prospect

of a government agency treating virtually identical legal issues

differently in different cases, without any semblance of a

plausible explanation, raises precisely the kinds of concerns

about arbitrary agency action that the consistency doctrine

addresses (at least where the earlier decisions were not summary

in nature, but, rather, contained fully reasoned explications of

why a certain view of the law is correct). Put bluntly, we see

no earthly reason why the mere fact of nonpublication should

permit an agency to take a view of the law in one case that is

flatly contrary to the view it set out in earlier (yet

contemporary) cases, without explaining why it is doing so.4

Hence, we do not believe that the BIA, in the circumstances at

hand, can take refuge behind the determination not to publish

4In this vein, we note that the Leal-Rodriguez court, while

stating that it would "not bind the BIA with a single non-
precedential, unpublished decision," also observed that the
unpublished decision there at issue was not, in fact,
inconsistent with the BIA's position in the case before it, and
that, therefore, the unpublished ruling "would not help"
petitioner even if it had precedential value. Leal-Rodriguez,

990 F.2d at 946 & n.9. That is not the situation here.

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Hernandez-Jimenez and Garcia.

Finally, the INS argues, for the first time on this

appeal, that further proceedings are pointless because the

petitioner has admitted his unlawful entry once again in an

asylum petition and other related materials. We are uncertain,

however, about the circumstances surrounding the preparation of

these materials; we are also uncertain as to the extent to which

the materials are admissible. See, e.g., 8 C.F.R. 242.17(e)

(stating that an asylum application "shall not be held to

constitute a concession of alienage or deportability in any case

in which the respondent does not admit his alienage or

deportability"). Consequently, we think that the course of both

fairness and prudence is to leave this aspect of the matter open.

Cf. Unemployment Comp. Comm'n v. Aragon, 329 U.S. 143, 155 (1946)

("A reviewing court usurps the agency's function when it sets

aside the administrative determination upon a ground not

theretofore presented and deprives the [agency] of an opportunity

to consider the matter, make its ruling, and state the reasons

for its action."); Sullivan v. CIA, 992 F.2d 1249, 1256 (1st Cir.

1993) (refusing to consider newly emergent ground for possible

relief from agency action not considered below). The INS remains

free to raise it, or to present additional evidence relevant to

Davila-Bardales's deportability, on remand.

We need go no further. For the reasons set forth

herein, we grant the petition for review, vacate the BIA's

decision, and remand the case for further proceedings consistent

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with this opinion.

So ordered.

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