Jose Cristobal Cruz Pleitez v. WILLIAM P. BARR, Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE CRISTOBAL CRUZ PLEITEZ,
Petitioner,
v.
WILLIAM P. BARR, Attorney
General,
Respondent.
No. 15-72876
Agency No.
A074-803-846
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 14, 2019*
Pasadena, California
Filed September 18, 2019
Before: Mary M. Schroeder and Susan P. Graber, Circuit
Judges, and Michael H. Watson,** District Judge.
Opinion by Judge Graber
* The panel unanimously concludes that this case is suitable for
decision without oral argument. Fed. R. App. P. 34(a)(2).
** The Honorable Michael H. Watson, United States District Judge for
the Southern District of Ohio, sitting by designation.

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CRUZ PLEITEZ V. BARR 2
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.
*** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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CRUZ PLEITEZ V. BARR 3
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.

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CRUZ PLEITEZ V. BARR 4
COUNSEL
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.
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.
1 We resolve additional issues in a memorandum disposition filed this
date.

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CRUZ PLEITEZ V. BARR 5
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

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CRUZ PLEITEZ V. BARR 6
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
2 The INA provision relating to removal proceedings conducted in
absentia is now located at 8 U.S.C. § 1229a(b)(5).

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CRUZ PLEITEZ V. BARR 7
(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
3 Petitioner was not in federal or state custody at the time of notice
and, therefore, does not meet the requirements of the second method to
reopen under § 1252b(c)(3)(B).

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CRUZ PLEITEZ V. BARR 8
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,
4 The subsections in § 103.8 of the current Code of Federal
Regulations match those in former § 103.5a. Compare 8 C.F.R. § 103.5a
(1997) with 8 C.F.R. § 103.8 (2017). See also Immigration Benefits
Business Transformation, 76 Fed. Reg. 53,764-01 (Aug. 29, 2011).
5 As noted in Flores-Chavez, 362 F.3d at 1158–59, 1158 & n.5, the
terms “minor” and “juvenile” are used inconsistently and sometimes
interchangeably in the INS regulations. We use the terms “minor” and
“juvenile” in this opinion to refer to any person under the age of 18.

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CRUZ PLEITEZ V. BARR 9
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
6 The subsections in § 236.3 of the current Code of Federal
Regulations match those in former § 242.24. Compare 8 C.F.R. § 242.24
(1997) with 8 C.F.R. § 236.3 (2017). See also Inspection and Expedited
Removal of Aliens, 62 Fed. Reg. 10,312-01 (Mar. 6, 1997); Apprehension,
Processing, Care, and Custody of Alien Minors and Unaccompanied Alien
Children, 83 Fed. Reg. 45,486-01 (Sept. 7, 2018).

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CRUZ PLEITEZ V. BARR 10
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

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CRUZ PLEITEZ V. BARR 11
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 that case were
deemed sufficient. Id. at 1160–62. The due process analysis,
like the regulatory analysis, differs significantly here.
Because “[t]he private liberty interests involved in
deportation proceedings are indisputably substantial,”
Dillingham v. INS, 267 F.3d 996, 1010 (9th Cir. 2001), alien
minors “in deportation proceedings are entitled to the fifth
amendment guaranty of due process,” Larita-Martinez v. INS,
220 F.3d 1092, 1095 (9th Cir. 2000) (internal quotation marks
omitted). And “parental notification requirements, such as
those established in 8 C.F.R. § 103.5a, further implicate the
due process rights of juveniles, as minors generally cannot
appreciate or navigate the rules of or rights surrounding final
proceedings that significantly impact their liberty interests.”
Flores-Chavez, 362 F.3d at 1160 (citing In re Gault, 387 U.S.
1, 33–34 (1967)).
Accordingly, we must (as we did in Flores-Chavez) apply
the test outlined in Mathews v. Eldridge, 424 U.S. 319
(1976), to analyze whether the regulatory framework provides
constitutionally sufficient notice in the present circumstances.
We must consider,
[f]irst, the private interest that will be affected
by the official action; second, the risk of an
erroneous deprivation of such interest through

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CRUZ PLEITEZ V. BARR 12
the procedures used, and the probable value,
if any, of additional or substitute procedural
safeguards; and finally, the Government’s
interest, including the function involved and
the fiscal and administrative burdens that the
additional or substitute procedural
requirement would entail.
Id. at 335. Under Mathews, we then balance the affected
interests to assess “whether the administrative procedures
provided here are constitutionally sufficient.” Id. at 334.
First, we examine the affected interest of the individual.
As stated in Flores-Chavez,
the private interest in receiving notice of
pending deportation proceedings is one of
grave importance. For over one hundred
years, our courts have held that aliens possess
due process rights under the Fifth
Amendment. See Yamataya v. Fisher,
189 U.S. 86 (1903). An alien facing
deportation confronts the loss of a significant
liberty interest, as deportation “visits a great
hardship on the individual and deprives him
of the right to stay and live and work in this
land of freedom.” Bridges v. Wixon, 326 U.S.
135, 154 (1945); Dillingham, 267 F.3d
at 1010.
Flores-Chavez, 362 F.3d at 1161. This factor clearly weighs
in favor of Petitioner.

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Second, we examine the risk of error and probable value
of additional safeguards. We wrote in Flores-Chavez that
“the regulatory and statutory framework makes clear [that]
juveniles require the assistance of a responsible adult to
navigate the deportation process.” Id. at 1161. We also noted
that “[t]he regulatory framework which includes 8 C.F.R.
§ 242.24 contemplates that no minor alien under the age of
eighteen should be presumed responsible for understanding
his rights and responsibilities in preparing for and appearing
at final immigration proceedings.” Id. at 1157. The
immigration laws are complex, and our precedents recognize
that minors face a substantial risk of error in navigating the
system.
Nonetheless, the calculation differs here, and not just
because Petitioner is slightly older than Flores-Chavez was.
Petitioner himself set in motion the procedures leading to his
hearing by filing an affirmative asylum application and by
appearing before an asylum officer. These facts suggest that
the risk of error in Petitioner’s situation is less than the risk
of error in Flores-Chavez’ situation.
More importantly, no adult ever entered an agreement
with the government to assume responsibility for Petitioner.
It is unclear with whom Petitioner lived at the time of his
deportation hearing, including whether anyone at his
residence was over the age of 18. It is equally unclear that
notice to an adult living at his residence (if there was one)
would have added any safeguards to the process, because we
cannot know whether that adult would have been willing to
take the kind of responsibility that was statutorily assigned in
Flores-Chavez. Without researching the details of every
minor’s situation, it is impossible to know whether a
particular minor over the age of 14 resides with an adult and,

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CRUZ PLEITEZ V. BARR 14
if so, whether serving the OSC on that adult will be any
more effective in ensuring the minor’s attendance at the
hearing than serving notice on the minor.
Third, we examine the governmental interest and potential
burden. We have observed that “it is to the INS’s great
benefit to have as many juveniles as possible attend their
hearings, thus avoiding the expenditures of time and money
in locating those ordered deported in absentia.” Flores-
Chavez, 362 F.3d at 1162. Nonetheless, requiring the
government to provide notice to a responsible adult living
with a never-detained juvenile over the age of 14 assumes
that there is such a person and that the person can be
identified.
In Flores-Chavez, we reasoned that “the incidental burden
incurred by the INS is minimal when compared both with the
minor’s interests in understanding his rights and
responsibilities and in appearing at his immigration
proceedings, and with the likely effectiveness of proper
notice to the responsible adult in achieving those ends.” Id.
In sharp contrast, here the burden on the government would
be substantial. Unlike in Flores-Chavez, at the time the
government serves a never-detained minor over the age of
14—particularly one who has affirmatively applied for
asylum—with an OSC, it likely never interacted with that
minor’s adult relative or guardian. Cf. at 1161–62 (noting
that “[t]he agency could provide the notice when the adult
arrives to take custody of the minor and could read it
simultaneously to the minor and the adult”). Research would
be required to determine who lives with the minor, what their
relationships to the minor are, and what, if any, responsibility
they might have (or be willing and able to undertake) to
ensure that the minor appears for immigration proceedings.

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CRUZ PLEITEZ V. BARR 15
Such a process necessarily would involve material “fiscal and
administrative burdens.” Mathews, 424 U.S. at 335.
Balancing all the factors, the burden on the government
outweighs the interest of never-detained minors over the age
of 14, at least those who have filed an affirmative request for
relief. The BIA did not violate due process, and Petitioner’s
notice was sufficient.
Petition DENIED.

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