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Cruz Pleitez v. Barr

United States Court of Appeals, Ninth Circuit

September 18, 2019

Jose Cristobal Cruz Pleitez, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          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 ...


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