UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

B.R., No. 19-70386 Petitioner, Agency No. v. A200-822-829

MERRICK B. GARLAND, Attorney General, ORDER AND Respondent. OPINION

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 9, 2021 San Francisco, California

Filed February 23, 2022 Before: Kim McLane Wardlaw and Carlos T. Bea, Circuit Judges, and Lee H. Rosenthal, * District Judge.

Order; Opinion by Judge Bea

* The Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of Texas, sitting by designation. 2 B.R. V. GARLAND

SUMMARY **

Immigration

The panel filed: 1) an order granting Respondent’s petition for panel rehearing, withdrawing the opinion filed July 12, 2021, replacing that opinion with a superseding opinion, and denying as moot the petition for rehearing en banc; and 2) a superseding opinion denying in part and granting in part B.R’s petition for review of a decision of the Board of Immigration Appeals, and remanding. In the superseding opinion, the panel held that 1) substantial evidence supported the agency’s conclusion that B.R. was properly served a copy of his Notice to Appear (“NTA”); 2) the Department of Homeland Security (”DHS”) later cured its initial failure to serve the NTA on B.R.’s custodian when he was released from detention as a minor; 3) the agency erred by failing to credit or discredit B.R.’s specific evidence that the government’s evidence of alienage was tainted by violations of his rights; and 4) the evidence did not compel reversal of the agency’s denial of protection under the Convention Against Torture.

As to the issue of personal service, the panel concluded that B.R.’s declaration stating that he did not remember receiving a copy of the NTA fell far short of the evidence needed to rebut the presumption of proper personal service. As to the issue of service on B.R’s custodian (his mother), B.R. relied Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), which held that DHS must provide service of an

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. B.R. V. GARLAND 3 NTA on the custodians of juvenile aliens released from custody. The parties agreed that, after releasing B.R. from its custody, DHS never served the NTA on his custodian and that, under Flores-Chavez, DHS’s original NTA service was thus insufficient. However, the parties disputed whether the error was fatal to DHS’s efforts to remove B.R.

As a general matter, the panel held that, absent a showing of prejudice, improper service of an NTA can be cured. The panel explained that the statute does not require notice at a particular moment and that nothing in the statute or regulations requires termination in this context. The panel also considered Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020), where the court addressed the similar issue of the service of a defective NTA. There, the court held that the remedy is to provide DHS an opportunity to cure the defect in the NTA rather than to order termination. The panel concluded that it logically proceeds that the remedy for improper service of an NTA is for proper service to be provided at a later time, provided the alien is not prejudiced. B.R. argued that a different rule exists for minors released from DHS custody. The panel rejected that contention, explaining that Flores-Chavez does no