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USCA1 Opinion

[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
and participated in the drafting

oral argument in this matter


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.


SELYA, Circuit Judge.
_____________

Ricardo Davila-Bardales asks us

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

which the BIA affirmed


order.
IJ's
15,

an Immigration Judge's (IJ's) deportation

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

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


entered this

immigration
IV 1992).

country unlawfully,

officer.

See 8 U.S.C.
___

that

rules and

of the Immigration

require "clear, unequivocal and

convincing" evidentiary support for


242.14(a) (1993).

by an

1251(a)(1)(B) (1988 & Supp.

The parties also agree that rules

and Naturalization Service (INS)

own

without inspection

such a finding.

C.F.R.

They disagree about whether the INS, under its

practices, could

properly consider

showed unlawful entry in this case

the evidence

evidence that consists

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


The proof before the
to

questions

several

that

other

hearing.

information

in the

Order

presenting

to

he was

featured petitioner's answers


directly
before

questions
Show

Davila-Bardales was

whether he "entered the

through the

then

These

the petitioner whether

about July 27,

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

United States near Laredo, Texas,

1989," and whether he did

(and

Peru,"

on or

so "through the river,

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


[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,

hearing.

or friend

present to

advise him

at the

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
record of
answers

second set

of

the immigration
to further

evidentiary items
hearing consists of

questions that

judge) realized that petitioner's


created

a potential legal problem.

Davila-Bardales

form,

contained in

called

the IJ

the

the petitioner's

asked after

he (the

age and lack of representation

At that point, the IJ showed


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


Bardales

was "a native and

citizen of Peru,"

that Davila-

who "last entered

the United States

on July 27, 1989,

inspected at that time."

near Laredo," and was

In response,

"not

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.
4

this

statement

("everything

deportability.
very

same

that

without

important rights

compelling

are at stake.

difference

between

as

itself

cannot do so

prevents

responses to the OSC.

substance

functional

correct")

event, the INS

regulation

petitioner's
over

In any

is

it

from

showing

due to the
relying

on

Courts should not exalt form


reason,

particularly

So it is here:
asking

when

we perceive no

petitioner

whether

the

allegations

in the OSC are true and asking him whether identical

allegations

in

perceive

no

distinction.

the

form

compelling
Hence,

I-213 are
reason

petitioner's

true;
for

and,

making

statement,

substantive evidence, would seem "an admission of


made

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

asking Davila-Bardales whether

accurate,

piece of paper, does

a guardian,

but

reading

not cure the

them from

basic legal defect

that mars the initial questioning.


Little

daunted, the

INS

evidence admitted at the hearing:

points to

third kind

the I-213 form itself.

of

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

little

Spanish," and

country, before an

who (petitioner

official who "spoke

says)

"hit" him

"in the

face."
We
quoted

agree with

INS that

does not explicitly apply

the regulation,
hearing

the

and

in context,
the

IJ's

regulation we

to this evidence.

seems to
acceptance

deportability at that hearing.


________________

the

refer to the
of

an

have

After all,

immigration

"admission"

of

It says nothing about admissions

made

at other times and under other circumstances.

See 8 C.F.R.
___

242.16(b).3
Nonetheless, the
considerable

skepticism

BIA, in
about

the

its case law,


admissibility

has expressed
of

similar

statements made to Border Patrol officers by persons who are both


unrepresented

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

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

case, it stated in the course of deciding

the BIA

decided this

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 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,

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

at

matter

circumstances
involves

hand

sort

of

that the BIA, in those other cases, addressed.

It

a midnight

seems

Border

to

present

Patrol

exactly

the

investigation, an

underage

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


physical
the

abuse.

Yet, here,

arresting officers.

carefully

records do

no evidence from

not indicate

that it

examined the circumstances surrounding the preparation

of form I-213.

Nor

did the IJ,

Hernandez-Jimenez, treat
_________________
(an

Its

the INS presented

unaccompanied

in the words

the admissions made

minor) as

"inherently
8

the BIA used

in

by Davila-Bardales

suspect."

And

as a

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

identically" in every case,


F.2d 292,

creation

of

identical

this

"conflicting

lines

agency from

of

precedent

explained before, is

in the

governing

the

NLRB, 884
____

The purpose of

"to prevent the

from significantly changing [its] policies without

awareness

change."

EPA, 889
___

Shaw's Supermarkets, Inc. v.


__________________________

doctrine, as we have

conscious

it does prohibit an

(1st Cir. 1989) (citation omitted).

agency itself

regulations

inconsistent policies that result

situation."

F.2d 34, 37

interpret

Puerto Rican Cement Co. v.


_______________________

299 (1st Cir. 1989),

adopting significantly

or

of,

and

consideration of

the

need

for,

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


_______________________
This

is not

to

announced a precedent,

say

that

must forever

an

agency,

hew to it.

once

it

has

Experience

is

often the best teacher, and agencies retain a substantial measure


of

freedom

precedents

to
in

circumstances.
(1991);

refine,
the
See
___

reformulate,

light
Rust
____

of

new

v. Sullivan,
________

Motor Vehicle Mfrs. Ass'n


_________________________

and

even

insights
500

U.S.

reverse
and
173,

their

changed

186-87

v. State Farm Mut. Auto Ins.


__________________________

Co., 463 U.S. 29, 42 (1983).


___
orderliness.
significantly

If an

However, the law demands a certain

administrative

agency

decides to

depart

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

interrogation

and any

consequent

unrepresented

persons

is important.

Bardales's status, the


that

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

not open to an agency when,

explain why it is

acknowledge in the

admissions made

BIA appears

veers significantly

will treat border

as now, the agency

changing direction (or


that it is

even to

detouring from

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

few

other

points.

For

one

thing,

Hernandez-Jimenez and Garcia apparently are unpublished decisions


_________________
______
and, thus, not

formally in the

designated by the
in the technical
Leal-Rodriguez
______________

category of "selected

Board," so they do
sense.

v.

not constitute "precedent"

See 8 C.F.R.
___

INS, 990
___

F.2d

decisions

3.1(g) (1993); see also


___ ____

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

on

the

10

success)
facts.
we

will

decision.

to

distinguish

Hernandez-Jimenez and
_________________

Garcia
______

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


not

adopt

See, e.g.,
___ ____

it as

basis

for

sustaining

Sandstrom v. Chemlawn Corp., 904


_________
______________

the BIA's

F.2d 83,

86

(1st Cir.

1990) (holding

that arguments

not raised

in the

briefs are waived).


We note, moreover, that
Garcia are not
______

"precedent" in the technical sense,

of a government agency
differently

in

different

arbitrary

why a certain view


earthly

permit

the

semblance
kinds of

of

concerns

consistency doctrine

contained fully reasoned explications of

the mere

to

the

fact of

Put

bluntly, we see

nonpublication should

view of the law in


view

contemporary)

cases, without

Hence, we do

not believe that

hand, can

that

of the law is correct).

reason why

contrary

without any

precisely the

action

an agency to take a

flatly

the prospect

where the earlier decisions were not summary

in nature, but, rather,

no

cases,

raises

agency

addresses (at least

and

treating virtually identical legal issues

plausible explanation,
about

even if Hernandez-Jimenez
_________________

take refuge behind

it

set

explaining

out

one case that is


in

why it

the BIA, in the


the determination

earlier

(yet

is doing

so.4

circumstances at
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 nonprecedential, 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.
11

Hernandez-Jimenez and Garcia.


_________________
______
Finally, the
appeal,

that

petitioner

further

has

INS argues,

for the

proceedings

are

admitted his

unlawful

asylum petition and other related


however, about the
these materials;
the

that

pointless

materials.

on this

because

entry once

again

We are

circumstances surrounding the

the

in an

uncertain,

preparation of

we are also uncertain as to the extent to which

materials are admissible.

(stating

first time

an

asylum

See, e.g., 8
___ ____

C.F.R.

application "shall

not

242.17(e)
be

held

constitute a concession of alienage or deportability in any


in

which

the

deportability").

respondent

does

not

admit

his

alienage

Consequently, we think that the course

to

case

or

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

aside

the

usurps the

administrative

agency's function when

determination

upon

it sets

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

relief from agency action not considered below).


free to raise it,

for possible

The INS remains

or to present additional evidence

relevant to

Davila-Bardales's deportability, on remand.


We
herein,

we

need
grant

go no

further.

the petition

decision, and remand the

for

So ordered.
So ordered.
__________

the reasons

review,

set forth

vacate the

BIA's

case for further proceedings consistent


12

with this opinion.

For

13