Flores-Chavez v. Ashcroft

• Decision Date: 25 March 2004
• Docket Number: No. 01-70748.,01-70748.
• Citation: 362 F.3d 1150
• Parties: Jose FLORES-CHAVEZ, Petitioner, v. John ASHCROFT, Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

362 F.3d 1150

Jose FLORES-CHAVEZ, Petitioner, v. John ASHCROFT, Attorney

General,^* Respondent.

No. 01-70748.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted on July 11, 2002.

Submission Vacated on August 19, 2002.

Re-Argued on June 18, 2003.

Re-Submitted on March 18, 2004.

Filed March 25, 2004.

Martin Resendez Guajardo, Law Office of Martin Resendez Guajardo, San Francisco, CA, for the Petitioner.

Carl H. McIntyre, Jr., United States Department of Justice, Civil Division, Washington, D.C., for the Respondent.

Lucas Guttentag, American Civil Liberties Union Foundation, Oakland, CA, amicus curiae, for the Petitioner.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A70-169-816.

Before: WARDLAW, BERZON, Circuit Judges, and ISHII, District Judge.^**

OPINION

WARDLAW, Circuit Judge:

Jose Flores-Chavez was fifteen years old when the Immigration and Naturalization Service ("INS") detained him for illegally entering the United States and then released him into the custody of an adult relative. Although the adult relative was presumed to take responsibility for Flores' appearance at his deportation hearing, see 8 C.F.R. §§ 242.24(b)(3)-(4) (1993),¹ the agency did not serve the adult with the Order to Show Cause ("OSC") and Notice of Hearing. Instead, the INS served only Flores with the OSC and the information specifying the date and time of Flores' upcoming hearing and his attendant rights and obligations. Flores failed to appear at the hearing and was ordered deported in absentia.

The Board of Immigration Appeals ("BIA") rejected Flores' claim that he did not receive proper notice, ruling that the INS was required to serve only him, and not the adult to whom he was released from custody, because he was over fourteen years of age at the time. See 8 C.F.R. § 103.5a(c)(2)(ii). Flores now petitions for review of the BIA's decision denying his motion to reopen his proceedings and rescind the in absentia deportation order.

Construing the regulatory scheme governing juvenile notice and release as a whole, we cannot agree with the government's position that, although the regulations required the responsible adult to ensure Flores' appearance at the hearing, the INS was not required to give notice of the hearing to that adult. Because we must interpret the immigration laws to avoid serious constitutional questions, such as the due process issues implicated here, see Zadvydas v. Davis, 533 U.S. 678, 689, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), we hold that the only reasonable interpretation of the regulations at issue requires that the agency serve notice both to the "juvenile," as defined in 8 C.F.R. § 242.24, and to the person to whom the regulation authorizes release. We therefore grant Flores' petition for review.

I. Facts

The facts are largely undisputed. Flores left his native El Salvador by bus on or about February 10, 1993, with plans to seek employment in New York. Flores was then fifteen years old and was accompanied by his two adult sisters. On February 17, 1993, Flores entered the United States without inspection near San Ysidro, California, and was apprehended by the INS.

The INS served upon Flores the OSC and Notice of Hearing that same day. The OSC charged him with deportability under section 241(a)(1)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1251(a)(1)(B), for entry without inspection. The information on the OSC was presented in both English and Spanish, and was read to him by the Border Patrol agent in Spanish as well. The OSC notified Flores that he was to appear for a hearing before the Office of the Immigration Judge in San Diego, California on June 30, 1993 at 9:00 a.m., and informed him of his "rights and consequences." However, Flores did not sign the form indicating he understood those rights. Although Flores was released into the care and responsibility of an adult relative,² the OSC and Notice of Hearing were not provided to that adult.

Because Flores had just arrived in the United States on his journey from El Salvador and had no address, the OSC and Notice of Hearing indicated in the blank adjacent to the word "address": "In transit to be provided by respondent at a later date." Upon release, Flores moved to Northern California to join his family. In early 2000, Flores was arrested on a misdemeanor assault charge and served a three-month sentence. Shortly after he returned to his home, he was apprehended by INS agents who informed him and his family that Flores had been ordered deported in absentia seven years earlier, in 1993. Flores was then taken into INS custody.

As it turned out, on June 30, 1993, at a hearing at which Flores was not present, Immigration Judge ("IJ") John Williams had issued an order deporting Flores, finding that he had "abandoned all claims" and that he had waived his right to appeal.

On November 8, 2000, Flores moved to reopen his deportation proceedings before the IJ and to rescind the order of deportation for lack of notice pursuant to INA § 242B(c)(1), Pub.L. 101-649, 104 Stat. 5061 (1952) (codified as amended at 8 U.S.C. § 1252b (1995)) (repealed 1996). The IJ denied Flores' motion on December 22, 2000, finding that he had received adequate notice of his hearing date. Flores timely appealed the IJ's decision to the BIA, which affirmed the IJ's decision on April 13, 2001, citing 8 C.F.R. § 103.5a(c)(2)(ii). Because Flores was fifteen when served with the OSC, the BIA reasoned that service upon him was adequate because service upon the person with whom a minor over fourteen resides was not required by regulation. The BIA also found that the INS had fulfilled its obligations under the general notice provisions of § 242B(a)(2). Thus, the BIA ruled that Flores had received "proper notice." Flores filed a timely appeal and a two-judge panel of our court stayed Flores' deportation. He remains in INS custody to this day.

II. Jurisdiction and Standard of Review

Since Flores was placed in deportation proceedings before April 1, 1997, and his final deportation order became effective after October 30, 1996, this case is governed by the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3099-546 (Sept. 30, 1996). See IIRIRA §§ 309(a), (c)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir.2001) (en banc); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). We have jurisdiction pursuant to former INA § 106(a), 8 U.S.C. § 1105a(a), as modified by IIRIRA's § 309(c)(4). We review the BIA's denial of a motion to reopen for an abuse of discretion. See Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir.1999); Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996). We will defer to the BIA's decision unless it "acted in a manner `arbitrary, irrational, or contrary to law.'" Caruncho v. INS, 68 F.3d 356, 360 (9th Cir.1995) (internal citations omitted). We review the BIA's factual findings for substantial evidence, and its purely legal determinations de novo. Sharma, 89 F.3d at 547.

III. Discussion

Because due process requires that aliens receive notice of their deportation hearings that is reasonably calculated to reach them, see Dobrota v. INS, 311 F.3d 1206, 1210 (9th Cir.2002), failure to provide adequate notice is grounds for reopening deportation proceedings. See 8 U.S.C. § 1252b(c)(3)(A). The notice provided to secure Flores' appearance at his 1993 deportation hearing was legally insufficient. Therefore, the BIA abused its discretion in refusing to reopen Flores' deportation proceedings.

A. General requirements of adequate notice

We first examine what generally constitutes adequate notice. The statutory provisions which govern notice of deportation proceedings are codified at INA § 242B; 8 U.S.C. § 1252b.³ In all deportation proceedings, § 242B mandates that written notice in the form of the OSC "be given in person to the alien or by certified mail to the alien or counsel," specifying

(A) The nature of the proceedings against the alien.

(B) The legal authority under which the proceedings are conducted.

(C) The acts or conduct alleged to be in violation of law.

(D) The charges against the alien and the statutory provisions alleged to have been violated.

(E) The alien may be represented by counsel

. . . .

§ 242B(a)(1)(A)-(E).

The statute additionally requires that

written notice shall be given to the alien... in the order to show cause or otherwise, of — (i) the time and place at which the proceedings will be held, and (ii) the consequences under subsection (c) of the failure, except under exceptional circumstances, to appear at such proceedings.

§ 242B(a)(2)(A)(i), (ii). The alien must also receive oral notice, in either his native language or a language he understands, of the above information. § 242B(e)(1). The OSC and any other notice given to the alien must be provided in both Spanish and English. § 242B(a)(3)(A).⁴ Thus, in order to receive generally adequate notice, an alien must be informed, in a language he understands, of his rights and responsibilities in regard to the deportation hearing, the time and place of that hearing and the consequences of failing to appear.

A critical safeguard was built into the provisions of § 242B in order to protect aliens who did not receive adequate notice: should the INS fail to provide the required information, an alien may file a motion to reopen "at any time if the alien demonstrates that the alien did not receive notice in accordance with subsection (a)(2)...." § 242B(c)(3)(B). Therefore, if proper written notice is not provided to the alien which specifies both the time and place at which the proceedings will be held and the consequences for failing to appear at the proceedings, the in absentia deportation order may be rescinded. Flores argues that because proper written notice was not served upon the adult who took custody of him, he is entitled to have...