Cruz Pleitez v. Barr, 15-72876

• Decision Date: 18 September 2019
• Docket Number: No. 15-72876,15-72876
• Citation: 938 F.3d 1141
• Parties: Jose Cristobal CRUZ PLEITEZ, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

938 F.3d 1141

Jose Cristobal CRUZ PLEITEZ, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 15-72876

United States Court of Appeals, Ninth Circuit.

Submitted August 14, 2019^* Pasadena, California

Filed September 18, 2019

Frank E. Ronzio, Ronzio & Associates, Los Angeles, California, for Petitioner.

Virginia L. Gordon, Trial Attorney; Terri J. Scadron, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX3-846

Before: Mary M. Schroeder and Susan P. Graber, Circuit Judges, and Michael H. Watson,^** District Judge.

GRABER, Circuit Judge:

Petitioner Jose Cristobal Cruz Pleitez, a native and citizen of El Salvador, seeks review of the Board of Immigration Appeals' ("BIA") decision denying his 2014 motion to reopen. Petitioner arrived in the United States in 1990. He affirmatively applied for asylum in 1996 and was served with an Order to Show Cause and Notice of Hearing ("OSC"), but he failed to appear at his hearing. An immigration judge ("IJ") ordered Petitioner deported in absentia. As relevant here, Petitioner argues that he did not receive proper notice of the hearing because he was 16 years old in 1996 and no adult was served with the OSC. We hold that the notice given here comported with both regulatory requirements and due process.¹ Accordingly, we deny the petition for review.

FACTUAL AND PROCEDURAL HISTORY

In 1990, at the age of 10, Petitioner entered the United States without inspection. In 1996, he affirmatively sought asylum. An asylum officer interviewed Petitioner and referred his case to immigration court.

The former Immigration and Naturalization Service ("INS") served Petitioner, who was 16 years old at the time, with an OSC, which provided the date, time, and location of deportation proceedings. The OSC was sent by certified mail and included a return receipt, which Petitioner signed on July 25, 1996.

But Petitioner did not appear for his deportation proceeding and, on October 15, 1996, an IJ ordered him deported in absentia. In 2014, Petitioner filed a motion to reopen, seeking to rescind the deportation order. In his motion, Petitioner raised several issues, including a claim that notice to him only, without notice to a responsible adult, violated his rights under the principles announced in Flores-Chavez v. Ashcroft , 362 F.3d 1150 (9th Cir. 2004). There, we held that, when a minor is detained for illegally entering the United States and then released into the custody of an adult relative, "the only reasonable interpretation of the regulations at issue requires that the [INS] serve notice to both the ‘juvenile’ ... and to the person to whom the regulation authorizes release." Id. at 1153.

The IJ denied Petitioner's motion. Petitioner timely appealed to the BIA, which dismissed the appeal. As relevant here, the BIA ruled that Flores-Chavez does not control because Petitioner, unlike Flores-Chavez, presented no evidence showing that he had ever been detained and then released by INS into the custody of a responsible adult. Petitioner timely seeks our review.

STANDARDS OF REVIEW

When "the BIA conducts its own review of the evidence and law, rather than adopting the IJ's decision, our review is limited to the BIA's decision, except to the extent the IJ's opinion is expressly adopted." Zumel v. Lynch , 803 F.3d 463, 471 (9th Cir. 2015) (internal quotation marks omitted). We review the denial of a motion to reopen for abuse of discretion. Salim v. Lynch , 831 F.3d 1133, 1137 (9th Cir. 2016). "The BIA abuses its discretion when its decision is arbitrary, irrational, or contrary to law." Bonilla v. Lynch , 840 F.3d 575, 581 (9th Cir. 2016) (internal quotation marks omitted). But we review de novo due process claims. Vilchez v. Holder , 682 F.3d 1195, 1198 (9th Cir. 2012).

DISCUSSION

Former 8 U.S.C. § 1252b(c)(3)² provided that an in absentia deportation order

may be rescinded only—

(A) upon a motion to reopen filed within 180 days after the date of the order of deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (f)(2) of this section), or

(B) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with subsection (a)(2) of this section or the alien demonstrates that the alien was in Federal or State custody and did not appear through no fault of the alien.

Petitioner did not file his motion to reopen within 180 days after the IJ ordered him deported in absentia, so he is not eligible for relief under subparagraph (A). To determine whether Petitioner is eligible for relief under subparagraph (B), we must decide whether he received notice in accordance with § 1252b(a)(2) :³

In deportation proceedings under section 1252 of this title—

(A) written notice shall be given in person to the alien (or, if personal service is not practicable, written notice shall be given by certified mail to the alien or to the alien's counsel of record, if any), 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 this section of the failure, except under exceptional circumstances, to appear at such proceedings ....

As noted, Petitioner argues that, because he was 16 years old when he signed the return receipt on the OSC, he received insufficient notice. Section 1252b(a)(2) does not specify how a minor receives notice, but former 8 C.F.R. § 103.5a(c)(2)(ii)⁴ provided that,

in the case of a minor under 14 years of age, service shall be made upon the person with whom the ... minor resides; whenever possible, service shall also be made on the near relative, guardian, committee, or friend.

No statute or regulation specifically establishes a special method for serving a minor who is older than 14.⁵ Petitioner was over 14 years of age when he was served with the OSC. If § 103.5a controls, then the service of the OSC on Petitioner was proper under the then-extant statutes and regulations.

Petitioner counters that service was inadequate under Flores-Chavez . In Flores-Chavez , we analyzed the regulatory framework governing notice to alien minors, specifically former 8 C.F.R. § 242.24.⁶ 362 F.3d at 1156–57. Flores-Chavez was 15 years old when the INS served him with an OSC. Id. at 1153–54. He had been apprehended by the INS after crossing the border and had been released into the care and responsibility of an adult relative. Id. at 1154. The adult relative did not receive the OSC. Id. Flores-Chavez was ordered deported in absentia. Id. Seven years later, Flores-Chavez moved to reopen his deportation proceedings and to rescind the deportation order for lack of notice. Id. We held that, although the INS had provided Flores-Chavez with the notice required by § 1252b, as an alien minor in INS custody , Flores-Chavez was entitled to additional notice. Id. at 1156.

First, the Flores-Chavez court examined § 242.24, INS's juvenile detention and release regulation, which defines juveniles as "alien[s] under the age of eighteen (18) years." 8 C.F.R. § 242.24(a), (b)(1) (1997). That regulation also provides that a responsible adult assumes both custody and responsibility for a juvenile who is released into that adult's care. "The fair implication of § 242.24 as a whole is that any adult to whom an alien juvenile is released is charged with the dual responsibilities of caring for the juvenile and ensuring that the juvenile keeps his obligations to the court." Flores-Chavez , 362 F.3d at 1156. Because § 242.24 "assumes that a juvenile over fourteen is not competent to assure his presence at the hearing, the INS's service of the time and place of the proceedings on only [Flores-Chavez] himself and not on the adult who took custody of him deprived [Flores-Chavez] of the effective notice to which he was legally entitled under § [1252b(a)(2) ]." Id. at 1157.

Second, the court considered 8 C.F.R. § 103.5a, which generally governs the requirements for service of notice on aliens. Relevant to this case, § 103.5a(c)(2)(ii) requires service "upon the person with whom the ... minor [under 14 years of age] resides." Flores-Chavez reasoned that its reading of § 242.24 does not conflict with the requirements of service detailed in § 103.5a, noting that § 103.5a does not "purport to address the issue of notice to juveniles in custody who are released to an adult for an appearance at a future hearing." 362 F.3d at 1158 (emphasis added).

Flores-Chavez' circumstances and Petitioner's circumstances differ significantly. Petitioner was not detained. And he filed an affirmative application for asylum. See E. Bay Sanctuary Covenant v. Trump , 932 F.3d 742, 767 (9th Cir. 2018) (citing Dhakal v. Sessions , 895 F.3d 532, 536–37 (7th Cir. 2018), for its description of the affirmative asylum process); Dhakal , 895 F.3d at 536 ("A person physically present in the United States, and not in removal proceedings, may apply affirmatively for asylum ...."). The application stated that Petitioner was not in exclusion or deportation proceedings, that he had been in the United States for more than 5 years, and that he had lived for the last 5 years at a private residence in California. Additionally, Petitioner was 16 at the time he was served with notice.

The relevant regulations differ, too, because Petitioner was not detained. Thus the question before us is whether Flores-Chavez extends to situations in which a minor over the age of 14 was never detained or released to an adult by the INS and in which he initiated proceedings by filing an affirmative request for relief. We conclude that the answer is "no."

In addition to resting on an interpretation of the relevant statutes and regulations, Flores-Chavez concluded that due process concerns would arise if the notice in ...