GOMEZ-GOMEZ

Cite as 23 I&N Dec. 522 (BIA 2002) Interim Decision #3483

In re Glendi GOMEZ-GOMEZ, Respondent
File A77 482 742 - Harlingen
Decided December 4, 2002
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) The Immigration and Naturalization Service met its burden, in an in absentia removal
proceeding, of establishing a minor respondent’s removability by clear, unequivocal, and
convincing evidence, where (1) a Record of Deportable/Inadmissible Alien (Form I-213)
was submitted, documenting the respondent’s identity and alienage; (2) the respondent,
who failed without good cause to appear at her removal hearing, made no challenge to the
admissibility of the Form I-213; (3) there were no grounds for a finding that the admission
of the Form I-213 would be fundamentally unfair; and (4) no independent evidence in the
record supported the Immigration Judge’s conclusion that the respondent may not have
been the child of the adult who claimed to be the respondent’s parent and who furnished
the information regarding her foreign citizenship. Matter of Ponce-Hernandez, 22 I&N
Dec. 784 (BIA 1999), followed.
(2) The respondent, a minor who could not be expected to attend immigration proceedings
on her own, was properly notified of her hearing, through proper mailing of a Notice to
Appear (Form I-862) to the last address provided by her parent, with whom she was
residing.
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, GRANT, MILLER, HESS, and
PAULEY, Board Members. Dissenting Opinion: SCHMIDT, Board Member,
joined by GUENDELSBERGER, MOSCATO, BRENNAN, ESPENOZA, and
OSUNA, Board Members.
PAULEY, Board Member:

This case was most recently before us on May 17, 2002, when we
dismissed an appeal by the Immigration and Naturalization Service from the
Immigration Judge’s March 6, 2000, decision terminating the minor
respondent’s removal proceedings. The Service has filed a timely motion
requesting en banc reconsideration of our decision. The Service’s motion

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will be granted. Upon reconsideration, the appeal will be sustained, our
decision will be vacated, and the record will be remanded for further
proceedings.
I. ISSUES
Two issues are presented in the motion to reconsider: (1) whether the
Service proved that the respondent was removable; and (2) whether the
respondent received adequate notice of the removal proceedings and was
required to appear.

II. PROOF OF REMOVABILITY AND SUFFICIENCY
OF THE FORM I-213
A. Background
Neither the respondent nor anyone representing her appeared at her hearing
on March 6, 2000. The Service introduced as the sole evidence of the
respondent’s removability a Record of Deportable/Inadmissible Alien (Form
I-213), which was prepared on January 8, 1999,1 by the arresting Border
Patrol agent. In that document, the agent recounted that he apprehended the
8-year-old female respondent at the Trailways bus station in Brownsville,
Texas, during a routine bus check. The agent noted that the respondent was
“in the company” of an adult, who represented that he was her father, Carlos.
The Form I-213 indicated that all information therein about the respondent
was obtained from Carlos. This information included the respondent’s date
and place of birth, as well as a mailing address in Houston, Texas. Carlos
also stated that they were coming to the United States to look for work and
that they were natives and citizens of Guatemala, who had entered the United
States illegally 2 days earlier by swimming the Rio Grande River from
Mexico.
In a decision dated March 6, 2000, the Immigration Judge found, inter alia,
that removability had not been established by clear, unequivocal, and
convincing evidence. On May 17, 2002, we affirmed, stating that the
Immigration Judge properly declined to rely on the information in the Form
I-213 “given the age of the child . . . and the fact that there was no
independent evidence submitted to establish either the identity of the person
accompanying the respondent or the accuracy of the information provided by
that person.”

1
The Immigration Judge mistakenly gave the date as June 8, 1999.

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B. Discussion
We have consistently held that absent any evidence that a Form I-213
contains information that is inaccurate or obtained by coercion or duress, that
document, although hearsay, is inherently trustworthy and admissible as
evidence to prove alienage or deportability. See Matter of Ponce-
Hernandez, 22 I&N Dec. 784 (BIA 1999); Matter of Barcenas, 19 I&N Dec.
609 (BIA 1988). Likewise, within the jurisdiction of the United States Court
of Appeals for the Fifth Circuit, in which this case arises (and generally
throughout the country), a Form I-213 is admissible and ordinarily sufficient
“for a prima facie case of deportability,” whereupon the “burden shifts to the
alien to prove that he is here legally” under section 291 of the Immigration
and Nationality Act, 8 U.S.C. § 1361 (2000). Bustos-Torres v. INS,
898 F.2d 1053, 1057 (5th Cir. 1990); see also Espinoza v . INS, 45 F.3d 308
(9th Cir. 1995); Matter of Benitez, 19 I&N Dec. 173 (BIA 1984).
The Immigration Judge nevertheless found that the general rule of Bustos-
Torres v. INS, supra, was inapplicable in this case because the respondent
was only 8 years old and the information in the Form I-213 about her alienage
was obtained from an individual who the Immigration Judge determined had
a motive to lie about his parental relationship to the respondent. The
Immigration Judge accordingly found that the information on the Form I-213
that Carlos provided about the respondent could not be deemed sufficiently
reliable, without additional evidence such as the testimony of the arresting
Border Patrol agent, to establish alienage, so as to trigger the operation of
section 291 of the Act.
We first point out that this is not a case in which information on a Form
I-213 is obtained from a minor, as in Matter of Ponce-Hernandez, supra, and
Matter of Amaya, 21 I&N Dec. 583 (BIA 1996). Thus, the considerations
and principles of special care when information is obtained from a minor
respondent, at issue in those cases, are not directly applicable here. In this
case, the question is the reliability of information about a minor respondent’s
alienage obtained from an adult, who the Service believes is accompanying
the minor, and whom it treats as such. The Immigration Judge properly
recognized that in this context, unless some valid cause exists not to credit the
information obtained from Carlos on the Form I-213, the general rule of the
reliability of that document, as recognized in Bustos-Torres v. INS, supra,
would control and require a finding that the respondent was removable. It is
thus critical to examine the basis on which the Immigration Judge determined
that the information on the Form I-213 was not sufficiently reliable.
That basis does not consist of any evidence proffered by the respondent
regarding the assertions of fact in the Form I-213. Indeed, no evidence
directly contesting the particulars of the Form I-213 was introduced because
the respondent failed to appear. Rather, the Immigration Judge predicated her

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finding of insufficient reliability of the Form I-213 on her belief that adult
aliens in her district who are apprehended with minor aliens are motivated to
make a false claim of parentage or other familial relationship with the minors
because they believe that such a relationship makes it less likely they will be
detained.
The Immigration Judge took administrative notice of the “practice of the
Service in this part of the country to release without requiring payment of any
type of bond adult[s] and juveniles who are traveling together.” In this
regard, she alluded to several instances in her experience in which such false
claims of parentage were made. She also cited to a prosecution, of which she
was aware, involving aliens renting out their children to other adult aliens
seeking to enter this country illegally. See United States v. Cabrera,
288 F.3d 163 (5th Cir. 2002) (involving a child-rental scheme based on a
policy of the United States Border Patrol of returning families with children
to Mexico rather than detaining them and charging them with illegal entry).
The Immigration Judge concluded that because of this motive to fabricate a
parental relationship, the information from Carlos in the Form I-213 about the
respondent’s alienage (as well as other information relating to proper notice,
discussed below) was insufficient, alone, to establish alienage.
The Immigration Judge’s finding, while proceeding in part from a laudable
desire to protect the rights of alien juveniles, does not withstand analysis and
is insufficiently grounded in evidence of record to impugn the contents of the
Form I-213 in this case. See Matter of Ponce-Hernandez, supra. Initially,
we note that it is unclear whether the Immigration Judge could properly take
administrative notice of circumstances arising in other cases or respecting the
practice in her region whereby adult aliens apprehended with juveniles would
be accorded more favorable treatment in terms of the Service’s release
policy.2 We need not resolve this thorny question. Even assuming proper
notice was taken, there is no evidence of record regarding the extent of this
practice and the degree to which it may result in such adult aliens making
false claims of a familial relationship to minors found in their company.3

2
The issue is whether, despite the wide latitude for administrative notice accorded within the
Fifth Circuit to agencies such as the Executive Office for Immigration Review, any or all of
these matters would be deemed the type of “commonly acknowledged” fact about which
administrative notice may legitimately be taken. See Rivera-Cruz v. INS, 948 F.2d 962,
966-68 (5th Cir. 1991); see also Board of Immigration Appeals: Procedural Reforms to
Improve Case Management, 67 Fed. Reg. 54,878, 54,902 (2002) (to be codified at 8 C.F.R.
§ 3.1(d)(3)(iv)) (authorizing the Board to take administrative notice only of “commonly known
facts,” implying that Immigration Judges are subject to the same standard).
3
There are also no specific facts to indicate that Carlos, who claimed to have traveled from
Guatemala all the way across Mexico, would have known about the practice prior to crossing
the border. For example, it is not alleged that he crossed with the aid of a smuggler, who might
(continued...)

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There is thus a clear and crucial absence of any factual basis for
undermining the trustworthiness of the allegations contained in the Form
I-213, most importantly the assertions that the respondent is Guatemalan and
that Carlos is her father. 4 Moreover, the Form I-213 in this case contains the
information that Carlos was “in the company” of the respondent when they
were arrested during a routine bus check. Although the Form I-213 notes that
“all information” therein came from Carlos, the fact that the two were in each
other’s company clearly reflects an observational fact of the arresting agent;
the information subsequently set forth in the Form I-213 is preceded, as this
observation is not, by the words the “father stated.” The fact that Carlos was
in the company of the respondent, in the setting of a bus depot or on the bus
(the Form I-213 is unclear on this point), reinforces the likelihood of a
genuine familial relationship between them, as he has asserted.
We emphasize that while generally considered to be reliable and sufficient
to establish alienage, not every Form I-213 that alleges alienage must be
ultimately so found.5 The Service would be well advised to include as many
indicia of trustworthiness regarding the information in that document as are
practicable, such as the source of the information and the circumstances of
the alien’s apprehension, as was done here.
Unlike the Immigration Judge, we perceive no adequate basis in this
instance for discounting the reliability of the information contained in the
Form I-213, with respect to both the fact that the adult provider of the
information is the respondent’s father, as alleged, and the fact that they are
aliens from Guatemala. No claim is made that the information in the Form
I-213 was obtained through coercion or duress. As previously discussed, the
sole basis for doubting its veracity is the Immigration Judge’s speculation that
the respondent may not be the child of the adult who so alleged and who
furnished the information about her Guatemalan citizenship.
3
(...continued)
reasonably be presumed to know the Service’s local detention practices and to have imparted
them to Carlos. Nor is there any indication that the respondent might be a child provided to
Carlos in consideration of the Service policy.
4
A different case might be posed if, for example, a study had been done showing that the
Service’s practice of releasing adult aliens with children resulted in a high percentage of false
claims of parentage of minor respondents, and such study was properly made part of the
record.
5
In Matter of Ponce-Hernandez, supra, we placed great weight on the fact that, as here, no
challenge was presented to the information on the Form I-213. But our decision in that case
did not go so far as to hold that any allegation of alienage in a Form I-213, however
conclusory, is sufficient to meet the Service’s burden of proof. See id. at 786-87 (noting that
there was nothing “facially deficient” about the Form I-213 in that case “that would render it
inadmissible,” and proceeding to enumerate the “detailed information” therein that caused the
Form I-213 to meet the requisite standard for finding alienage and to shift the burden of proof
under section 291 of the Act (emphasis added)).

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For the reasons set forth above, we find such grounds for questioning the
accuracy of the information to be insufficient on this record to overcome the
well-settled presumption of reliability that the Form I-213 enjoys and that is
necessary to the efficient enforcement of the immigration laws at our nation’s
borders. We therefore conclude that the Form I-213, like that in Bustos-
Torres v. INS, supra, was sufficient to establish the respondent’s alienage,
thereby bringing into effect the presumption of unlawful presence in section
291 of the Act. We further find that as a result of the respondent’s failure to
appear and the absence of any proof of her entitlement to be in the United
States, the presumption of her unlawful presence was not overcome.

III. ADEQUACY OF NOTICE AND
DUTY TO APPEAR
A. Background
As previously indicated, the Form I-213 listed the respondent’s address as
an apartment in Houston, Texas. On the same day as the Form I-213 was
prepared, the respondent was served with a Notice to Appear (Form I-862),
signed for by Carlos as her father and giving that same address. The Notice
to Appear stated that the respondent’s appearance date at the Immigration
Court would be calendared. Thereafter, four notices, each changing the date
for the respondent’s required appearance, and the last setting the date of
March 6, 2000, were mailed to the respondent at that address and were not
returned to the Immigration Court.
At the March 6, 2000, hearing, neither the respondent nor anyone
representing her appeared. However, the Immigration Judge declined to order
the respondent removed in absentia and terminated the proceedings instead.
As justification for doing so, the Immigration Judge relied, in part, on the lack
of adequate notice to the respondent. She determined that because the
information on the Form I-213 about Carlos’s parental relationship was
unreliable, service of the Notice to Appear on him was insufficient to
establish notice to the respondent. See 8 C.F.R. §§ 103.5a(c)(2)(ii), 236.2
(2002) (providing that service on an alien under 14 years of age shall be made
on the person with whom the minor resides). 6

6
As noted above, the Notice to Appear was addressed to the respondent, rather than to her
father. Because they were residing together, we do not find that this technical violation
resulted in prejudice to the respondent.

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B. Discussion
Insofar as the Immigration Judge found the service improper for the same
reasons as she found the Form I-213 insufficient to establish alienage, we find
her rationale, which is addressed above, to be erroneous.
The Immigration Judge also found, however, that even if Carlos was the
respondent’s father, he was not required to produce the respondent for her
hearing, and that “it would be a fundamental violation of [her] due process
rights to penalize [her] for failing to appear . . . given . . . that it is impossible
for a child that young to be expected to appear for a hearing on . . . her own.”
We disagree. The Immigration Judge’s holding effectively means that no
alien under the age of 14 could ever be deported in absentia (at least absent
the assignment of an adult guardian to each such alien). Even if the minor
alien received proper notice of the hearing, no one would bear the
responsibility for the alien’s subsequent appearance, a burden that could also
not be placed upon the minor alien. If that were Congress’s intent, section
240(b)(5)(A) of the Act, 8 U.S.C. § 1229a(b)(5)(A) (2000), the statute that
mandates entry of an in absentia order when an alien fails to appear, would
presumably contain such an exception.
Contrary to the Immigration Judge, we believe it is implicit in the statute
and regulations dealing with notice that an adult relative who receives notice
on behalf of a minor alien bears the responsibility to assure that the minor
appears for the hearing, as required.7 See Matter of Amaya, supra, at 585
(observing that the purpose of the regulation at 8 C.F.R. § 103.5a(c)(2)(ii) is
to provide for service 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”); cf. also Gonzalez v. Reno, 212 F.3d 1338, 1348-54
(11th Cir.), cert. denied, 530 U.S. 1270 (2000). Accordingly, we conclude
that the respondent was properly notified of her hearing, through mailing to the
address provided by her father, with whom she was residing.

IV. CONCLUSION
We find that the respondent’s removability was established by the Form
I-213 submitted into evidence by the Service. We find further that she was
properly notified of her hearing. Accordingly, we conclude that the
Immigration Judge erred in terminating removal proceedings and in failing to

7
See also 8 C.F.R. § 236.3(b)(3) (2000), which provides that where a parent is detained or
outside the United States, a juvenile may be released to another person designated by the
parent as able to care for the juvenile, if the person executes an agreement to ensure the
juvenile’s presence at all future proceedings. This regulation implies that the parent also bears
such an obligation.

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enter an in absentia order of removal. The following orders will therefore be
entered.
ORDER: The motion to reconsider en banc by the Immigration and
Naturalization Service is granted, the appeal is sustained, and our prior
decision in this matter is vacated.
FURTHER ORDER: The decision of the Immigration Judge terminating
proceedings against the respondent is vacated, and the record is remanded for
further proceedings consistent with the foregoing opinion and for the entry of
a new decision.

DISSENTING OPINION: Paul Wickham Schmidt, Board Member, in
which John Guendelsberger, Anthony C. Moscato, Noel Ann Brennan,
Cecelia M. Espenoza, and Juan P. Osuna, Board Members, joined

I respectfully dissent.
I agree with the Immigration Judge and our prior panel decision that the
removal proceedings against this unrepresented minor respondent should be
terminated and that the appeal of the Immigration and Naturalization Service
should accordingly be dismissed.

I. ISSUES
The two issues in this case are (1) whether the Record of
Deportable/Inadmissible Alien (Form I-213) is clear, unequivocal, and
convincing evidence of the respondent’s removability; and (2) whether notice
mailed to the alleged father of this child is legally sufficient. Like the
Immigration Judge, I answer both of these questions negatively.

II. FACTS
The majority adequately sets forth the facts. The most important
undisputed facts are as follows: (1) the respondent was 8 years old at the
time of her apprehension by the Border Patrol at the Trailways bus station in
Brownsville, Texas; (2) the respondent has never been in contact with the
Immigration Court; (3) the respondent is unrepresented; (4) the Form I-213
prepared by the Border Patrol agent at the time of apprehension is the sole
evidence of this minor respondent’s removability; (5) the Form I-213 was
prepared from information about this child furnished by “Carlos,” who
purported to be her father; (6) neither Carlos nor the Border Patrol agent
appeared to testify before the Immigration Judge.

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III. LAW
The relevant case on the adequacy of the Form I-213 is Matter of Ponce-
Hernandez, 22 I&N Dec. 784 (BIA 1999). There, we held that in the absence
of reason to doubt the reliability of the information contained in the Form
I-213, that document is presumed to be accurate and can constitute clear,
unequivocal, and convincing evidence of deportability, even in a case
involving an unrepresented minor respondent under the age of 16.
With respect to notice, we have found notice to be adequate for a minor
where there is clear, unequivocal, and convincing evidence that notice is
served on “the person or persons who are most likely to be responsible for
ensuring that [the minor] alien appears before the Immigration Court at the
scheduled time.” Matter of Amaya, 21 I&N Dec. 583, 585 (BIA 1996).

IV. ANALYSIS
A. Removability
Applying Matter of Ponce-Hernandez, supra, to this respondent’s
situation, the Immigration Judge found that there was reason to doubt the
reliability of this particular Form I-213. Consequently, the Immigration Judge
concluded that the Service had not satisfied its burden of establishing this
child’s removability by clear, unequivocal, and convincing evidence. See
section 240(b)(5)(A) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229a(b)(5)(A) (2000).
Significantly, the Immigration Judge (and our prior panel decision)
recognized the important differences between this respondent and the
respondent in Ponce-Hernandez. The respondent in Ponce-Hernandez was
much older—15 years old, as opposed to 8 years old. He provided the
information on alienage and deportability directly to the agent, rather than
having it provided by a third party. Finally, unlike our minor respondent, the
15-year-old respondent in Ponce-Hernandez was personally served with the
charging document, a permissible procedure under 8 C.F.R. § 103.5a(c)(2)(ii)
(2002) when dealing with respondents over 14 years of age.
A number of significant factors support the Immigration Judge’s conclusion
that this Form I-213 is not “clear, unequivocal, and convincing” evidence of
removability. First, this respondent was only 8 years old. Second, she never
appeared before the Immigration Court. Third, there was no attorney or other
legal representative of this minor respondent present at the hearing to protect
her rights. Fourth, the information on the Form I-213 was obtained from a
third party, Carlos. Fifth, there is no proof that Carlos actually is this
respondent’s father or that he is otherwise related to, or responsible for the
well-being of, this child. Sixth, Carlos did not appear to testify before the

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Immigration Judge. Seventh, the Border Patrol agent also did not appear to
testify. Eighth, Carlos had a logical and plausible motivation for
misrepresenting his relationship with this minor respondent, i.e., to increase
his own chances of release from custody. Ninth, the overall circumstances
of apprehension while the subjects were in transit at a Trailways bus station
are more likely to produce inaccurate information than when the apprehension
takes place in a more stable community setting.
In the overall circumstances of this case, I would defer to the Immigration
Judge’s reasonable application of Ponce-Hernandez to find that the
presumption of accuracy of the Form I-213 was rebutted. I therefore would
affirm her conclusion that the Service did not establish this minor
respondent’s removability by clear, unequivocal, and convincing evidence.
The majority claims that not every Form I-213 ultimately must be found
reliable. But, given the majority’s application of Ponce-Hernandez in this
case, I do not see when, if ever, a Form I-213 would not be conclusive
evidence in an in absentia case. The majority effectively converts the
rebuttable presumption of Ponce-Hernandez into an irrebuttable presumption
of removability in in absentia cases.
B. Notice
There is no evidence to suggest that this minor respondent had actual
notice of her scheduled removal hearing. I also agree with the Immigration
Judge that the evidence falls short of the clear, unequivocal, and convincing
standard required to show that a person most likely to ensure the respondent’s
presence at her hearing was properly served with notice. See Matter of
Amaya, supra. We know very little about Carlos and do not even know for
sure that he received notice on behalf of this child or that he furnished the
Service with an accurate address.

V. CONCLUSION
By the majority’s action, we now enter a final order of removal against a
young child who has never been in contact with the Immigration Court system.
We base this significant adverse decision on hearsay information provided by
her purported father, who also has never been in contact with the Immigration
Court. The sole evidence supporting our decision is a form filled out by a
Border Patrol agent who never appeared before the Immigration Court to
testify.
We are not properly applying our precedents in Ponce-Hernandez and
Amaya to this minor respondent. We also fail in our statutory responsibility
to ensure that there is clear, unequivocal, and convincing evidence of proper
notice and removability. Section 240(b)(5)(A) of the Act.

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I would uphold the Immigration Judge’s decision terminating proceedings
and approve the action of our prior panel dismissing the Service’s appeal.
Therefore, I would deny the Service’s motion for reconsideration.
Accordingly, I respectfully dissent.

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