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Justo Rojop-Hernandez, A205 147 894 (BIA Apr. 23, 2014)

Justo Rojop-Hernandez, A205 147 894 (BIA Apr. 23, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings at which the respondent was ordered removed in absentia upon finding he was not properly notified of the hearing under Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), which held that notice of removal proceedings involving juveniles must also be provided to an adult into whose custody they have been released. The decision was written by Member Sharon Hoffman and joined by Member John Guendelsberger and Member Elise Manuel.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings at which the respondent was ordered removed in absentia upon finding he was not properly notified of the hearing under Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), which held that notice of removal proceedings involving juveniles must also be provided to an adult into whose custody they have been released. The decision was written by Member Sharon Hoffman and joined by Member John Guendelsberger and Member Elise Manuel.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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Published by: Immigrant & Refugee Appellate Center, LLC on Jul 01, 2014
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07/14/2014

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Gabriel Sayavedra, Esquire

Sayavedra Law Firm P.L.L.C.
3113 N. 3
r
St.
Phoenix, A 85012
Name: ROJOP-HERNANDE, JUSTO
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigation Appeals
Ofce of the Chief Clerk
5107 Lesburg Pike, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - PHO
P.O. Box 25158
Phoenix, A 85002
A205-147-894
Date of this Notice: 4/23/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Guendelsberger, John
Hofan, Sharon
Manuel, Elise
Sincerely,
DO COA
Donna Carr
Chief Clerk
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Justo Rojop-Hernandez, A205 147 894 (BIA Apr. 23, 2014)
Rojop-Hernandez, Justo
A205-147-894
1705 E. Hanna Rd
Eloy, A 85131
Name: Rojop-Herandez, Justo
U.S. Deparent of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Chief Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Ofce of Chief Counsel - PHO
P .0. Box 25158
Phoenix, A 85002
A205-147-894
Date of this Notice: 4/23/2014 .
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to
you as a courtesy. Your attorney or representative has been served with this decision pursuant to 8 C.F.R.
§ 1292.S(a). If the attached decision orders that you be removed from the United States or afirms an
Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision
must be filed with and received by the appropriate court of appeals within 30 days of the date of the
decision.
Enclosure
Panel Members:
Guendelsberger, John
Hofman, Sharon
Manuel, Elise
Sincerely,
D(  C(
Donna Carr
Chief Clerk
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Cite as: Justo Rojop-Hernandez, A205 147 894 (BIA Apr. 23, 2014)
U.S. Department of Justice
Executve Ofce fr Imgaton Review
,
Decision of te Board of Imgaton Appeals
Falls Cuch, Virginia 20530
File: A205 14 7 894 - Phoenix, A
I re: JUSTO ROJOP-HRANEZ
I REMOVAL PROCEEDIGS
APPEAL
Date:
ON BEHAF OF RSPONENT: Gabriel Sayaveda, Esquire
APPLICATION: Reopening
APR 2 3 2014
The respondent has appealed the hgation Judge's August 28, 2012, decision tat dened
the respondent's motion to reopen proceedings in which he was ordered removed in absentia.
The record will be remanded.
We review I  igation Judges' fndings of fct fr clea eror, but questions of law,
dscretion, ad judgent, ad all other issues in appeals, de novo. 8 C.F.R. §§ 1003.l{d)(3)(i),
(ii).
O appea, te respondent aleges that he did not receive proper notice because he was a
minor. The record refects that on May 10, 2012, te respondent was personally sered wit a
Notice to Appear {NT A), ordering him to appea befre an Immigaton Judge at a date ad time
to be set. Exh. 1. Te respondent, who was 1 7 yeas old at the time, was released on his own
recogizace. Exhs. 1, 3. Upon releae fom custody, he reported hs address as "9431 N. Cave
Creek Rd. Apt. 19, Phoenix, A 85020." Id. On May 18, 2012, the Phoenix Imigaton Cou
sent a notice of heang by regula mail to the addess he provided. The respondent faled to
appear fr his heang ad he was ordered removed in absentia. The record does not contan ay
evidence that either te heaing notice, or te in absentia order of removal, was reted to te
Imigation Cou.
The United States Cou of Appeals fr te Nint Circuit in Flores-Chavez v. Ashcrof, held
that juveniles must be released by te frer IS to a responsible adult. See Flores-Chavez v.
Ashcrof, 362 F.3d 1150, 1156 (9th Cir. 2004) (holding that service of a chagng docuent on a
person under age 18 is not proper unless a qualifed adult is sered as well). This requirement
maes clea tat "juveniles ae presumed uable to appea at immigation proceedings witout
the assistace of a adult." Id. at 1157. "Without a adult who is chaged wit ensung te
juvenle's well-being ad compliance, the juvenile is at risk of failing to kee his obligations to
the cou. Therefre, a legally responsible adult must be charged with ensung te juvenile's
appeaace at te heaing." Id.; see also 8 C.F.R. § 236.3(a) (defnng juvenles as aliens uder
the age of 18 yeas). The court went on to fd tat te IS's service of te notce of heang on
Flores-Chavez, witout also sering the adult who took custody of him, deprived him of te
proper notice and that te Boad acted "conta to law"' in failing to reopen proceedngs.
(quoting Carncho v. IS, 68 F.3d 356, 360 (9th Cir. 1995)).
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Cite as: Justo Rojop-Hernandez, A205 147 894 (BIA Apr. 23, 2014)
Aos 147 894
Here, it is not clea why the respondent was released on his own recogzace. The For I-
213 refects tat te respondent was 17 yeas old when the NT A was personally sered. Exh. 3.
Accordngly, additonal notice provisions were required i this case. I ligt of Flores-Chave,
supra, we canot fnd that te respondent received adequate notice in this case. Thus, we will
vacate te I  igration Judge's orders denyng reopening ad also fnding the respondent
removable. We will remad in order to alow the Imigation Judge to adjudicate te
respondent's case, including any relief fr which he may be eligible. See Mater of Ruiz,
20 I&N Dec. 91 (I 1989) (stating that fllowing te grat of a motion to reopen ad rescind
a in absentia order, a alien is not required to demontate prima fcie eligbility fr relief.
Accordingly, the fllowing orders will be entered.
ORDER: The respondent's appeal is sustained.
FRTHER ORDER: The Imigation Judge's decisions denyig the respondent's motions
to reopen as well as his order of removal are vacated.
FUTHR ORDER: The proceedings ae remanded fr frther proceedings consistent with
this order.
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Cite as: Justo Rojop-Hernandez, A205 147 894 (BIA Apr. 23, 2014)
(
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFCE FOR IMMIGRTION REVIEW
OFICE OF THE IMIGRATION JUDGE
PHOENIX, AIZONA
IN THE MATTER OF
Justo RojopHernandez
A205147894
I REMOVAL PROCEEDINGS
On Behalf of the Respondent:
Gabriel Sayvera, Esq.
3113 N. 3r Stet
Phoenix, Arizona 85012
On Behalf of the D.H.S.:
Distict Counsel
2035 N. Cetal Ave.
Phoenix,.zona 85004
ORER
Te Cou is in receipt of the Respondent's Moton To Reopen ad te Deaent's
response tereto. The Resondent's Motion To Reopen is denied.
Te Notce of Heaing was sent by the Cou to te address provided by the Respondent.
The Respondet submitted no afdavit with his motion attesting that he did not receive te Notice
of Heag. The td-paty statement submitte by Sylvia Herera, which is not in afdavit fr,
is insufcient to ovecome the presuption of proper delive of the Notice of Heaing in tis
mater (see 8 C.F.R.1003.23(b)(3) ad Matter of M-R-A, 24 I&N Dec.665(BIA 2008).
Further, the Court declines to exercise its sua sponte autority to repe ts matter.
Baed on te fregoing, it is ordeed that te Respondet's Motion to Repe Proceedigs
be denied.
t, 2012
United States Imigation Judge
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