FOR PUBLICATION 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, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 9, 2021 San Francisco, California Filed July 12, 2021 Before: Kim McLane Wardlaw and Carlos T. Bea, Circuit Judges, and Lee H. Rosenthal, * District Judge. 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 Denying in part and granting in part B.R’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that 1) the Department of Homeland Security properly personally served B.R with a copy of his Notice to Appear; 2) DHS cured its failure to serve the NTA on B.R.’s custodian upon his release from detention as an unaccompanied minor; 3) the immigration judge erred by failing to credit evidence showing that proof of B.R’s alienage was tainted because it was obtained from his juvenile court records in violation of California privacy laws; and 4) the evidence did not compel the conclusion that B.R. was eligible for protection under the Convention Against Torture. Addressing the issue of personal service, the panel concluded that B.R. did not overcome the presumption of proper service of his NTA. The panel explained that in the absence of clear evidence to the contrary, the court may presume that public officers properly discharge their duties, and 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 regularity. Turning to the issue of service on B.R’s custodian, the panel observed that the parties agreed that after releasing B.R. from its custody, DHS never served the NTA on B.R.’s ** 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 custodian (his mother), and thus under Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004) (requiring DHS to serve the NTA on the custodian of a minor alien after he is released), DHS’s original NTA service was insufficient. The panel held that, absent a showing of prejudice, improper service of an NTA on a minor alien released from DHS custody can be cured if DHS later perfects service before substantive removal proceedings begin. The panel explained that Flores-Chavez does not require DHS to serve an NTA upon a minor alien’s custodian at the very moment the alien is released from its custody. The panel held that DHS cured the defective service by later serving a copy of the NTA on B.R.’s counsel, consistent with then applicable regulations, after he became an adult, and before substantive proceedings had commenced. The panel further held that B.R. had not shown that he …
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