
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  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.                                          4          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                                          5          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).                                          6          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                                          8          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.                                          11          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                                          12          with this opinion.                    So ordered.                    So ordered.                    __________                                          13
