## Facts

- Ricardo Davila-Bardales, a Peruvian national under age 16, was apprehended near the U.S. border and questioned by a Border Patrol officer.
- The officer prepared Form I-213 (Record of Deportable Alien) stating Davila-Bardales was a Peruvian citizen and had entered near Laredo, Texas, around July 27, 1989, without inspection.
- Davila-Bardales alleged the officer spoke little Spanish and struck him during the interview.
- The government initiated deportation proceedings charging him with entry without inspection under 8 U.S.C. § 1251(a)(1)(B).
- At the immigration hearing, Davila-Bardales appeared without counsel and without any guardian, relative, or friend.
- The Immigration Judge (IJ) questioned him using the charging allegations and elicited affirmative answers establishing alienage and unlawful entry; Davila-Bardales also indicated the I-213 information was correct.
- The IJ found him deportable, relying primarily on the hearing admissions and the I-213; the Board of Immigration Appeals (BIA) affirmed.

## Issues

1. Whether an IJ may rely on admissions establishing deportability obtained from an unrepresented, unaccompanied respondent under age 16 in light of 8 C.F.R. § 242.16(b).
2. Whether the agency may rely on a Form I-213 that memorializes the minor’s statements, or on the minor’s in-hearing confirmation of the form, to prove deportability despite the regulatory bar.

## Decision

- The court granted the petition for review, vacated the BIA decision (and underlying deportation order), and remanded.
- The regulation barred accepting the minor’s admissions of deportability because he was under 16, unrepresented, and unaccompanied.
- The government could not use Form I-213, or the minor’s in-hearing confirmation of it, as an indirect substitute for admissions the regulation made unusable.
- Excluding the barred admissions and derivative use of the I-213, the remaining record did not satisfy the government’s burden to prove deportability by clear, unequivocal, and convincing evidence.

## Legal Principles

- Immigration adjudicators must follow binding agency regulations; agency action taken in disregard of mandatory regulatory commands cannot stand.
- Under 8 C.F.R. § 242.16(b), an IJ may not accept an admission of deportability from a respondent under age 16 who is unrepresented and unaccompanied by a guardian, relative, or friend.
- The agency may not accomplish indirectly what its regulations forbid directly; evidence that merely memorializes or restates a barred admission cannot be used to circumvent the regulation.
- In deportation proceedings, the government bears the burden to establish deportability by clear, unequivocal, and convincing evidence.

## Conclusion

Because the agency relied on admissions elicited from an unrepresented, unaccompanied minor under 16, and attempted to reinforce those admissions through a derivative Form I-213, the First Circuit vacated the deportation order and remanded for further proceedings consistent with the governing regulation and the government’s heightened burden of proof.


Davila-Bardales v. Immigr. & Naturalization Serv., 27 F.3d 1 (1st Cir. 1994)