Cruz Pleitez v. Barr, 091819 FED9, 15-72876

Docket Nº:15-72876
Opinion Judge:GRABER, CIRCUIT JUDGE.
Party Name:Jose Cristobal Cruz Pleitez, Petitioner, v. William P. Barr, Attorney General, Respondent.
Attorney: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.
Judge Panel:Before: Mary M. Schroeder and Susan P. Graber, Circuit Judges, and Michael H. Watson, District Judge.
Case Date:September 18, 2019
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Jose Cristobal Cruz Pleitez, Petitioner,

v.

William P. Barr, Attorney General, Respondent.

No. 15-72876

United States Court of Appeals, Ninth Circuit

September 18, 2019

Submitted August 14, 2019 [*] Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A074-803-846.

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.

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

SUMMARY

[***]

Immigration

Denying Fernando Jose Cristobal Cruz Pleitez' petition for review of a decision of the Board of Immigration Appeals denying his motion to reopen his 1996 in absentia deportation order, the panel held that the notice Petitioner received of his hearing comported with regulatory requirements and due process, and rejected his argument that he did not receive proper notice because he was 16 years old at the time he was served and no adult was served with the Order to Show Cause and Notice of Hearing ("OSC").

Petitioner entered the United States without inspection at the age of 10 and affirmatively applied for asylum in 1996 when he was 16 years old. An asylum officer referred his case to immigration court, and the former Immigration and Naturalization Service ("INS") served him with an OSC providing the date, time, and location of his deportation hearing. The OSC was sent by certified mail and included a return receipt, which Petitioner signed. When Petitioner did not appear for his hearing, an immigration judge ordered him deported in absentia.

In 2014, Petitioner filed a motion to reopen, arguing that notice to him only, without notice to a responsible adult, violated his rights. The immigration judge denied Petitioner's motion, and the BIA dismissed his appeal.

At the relevant time, a regulation provided that notice to a minor under 14 years of age had to be made on a person with whom the minor resided, but no statute or regulation established a special method of serving a minor older than 14. However, in Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), this court held that, when a minor was 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 required that INS serve notice to both the juvenile and to the person to whom the regulation authorized release.

The panel held that Flores-Chavez does not extend 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. The panel explained that Flores-Chavez' circumstances and Petitioner's circumstances differed significantly: Petitioner was not detained, filed an affirmative application for asylum and was 16 years old when served his OSC, whereas Flores-Chavez was detained and released into the care of a responsible adult and was 15 when he was served his OSC. The panel also noted that the relevant regulations differed, too, because Petitioner was not detained.

Applying the test outlined in Mathews v. Eldridge, 424 U.S. 319 (1976), the panel further concluded that the notice Petitioner received comported with due process. Balancing all the factors, the panel explained that the burden on the government of providing notice to a responsible adult living with a juvenile over the age of 14 outweighed the interest of never-detained minors over the age of 14, at least those who had filed an affirmative request for relief.

OPINION

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...

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