Flores-Chavez v. Ashcroft

2004 U.S. App. LEXIS 5572

US Court of Appeals for the 9^th Circuit

No. 01-70748

The petitioner was fifteen years old when the INS detained him for illegally entering the United States and then released him into the custody of an adult relative.  The INS only served the petitioner with the Order to Show Cause and the information specifying the date and time of his upcoming hearing and his attendant rights and obligations.  Although the adult relative was presumed to take responsibility for the petitioner’s appearance at his deportation hearing, the agency did not serve the adult with the Order to Show Cause and Notice of Hearing.  The petitioner failed to appear at the hearing and was ordered deported in absentia. 

The BIA rejected the petitioner’s claim that he did not receive adequate notice because the INS was required to serve only him and not the adult to whom he was released into the custody of because he was over fourteen years of age.  The Court found that the petitioner was not give proper notice of his deportation proceedings and therefore ordered that he be released from government custody.  The Court held that since the adult was responsible for ensuring the petitioner’s appearance at the proceedings, the INS should have been required to give notice of the hearing to that adult.  Accordingly, the only reasonably interpretation of the regulation required that the agency serve notice to both the juvenile and to the person to whom the regulation authorizes release.

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Dominguez-Olivas v. Ashcroft

2004 U.S. App. LEXIS 3007

Miguel Manuel Dominguez-Olivas appealed from a decision of the Board of Immigration Appeals, which denied his request to reopen his application for cancellation of removal.  The Appellant claimed that because his attorney did not file a supporting brief and did not inform him that his appeal was denied, his attorney’s performance on his original appeal to the BIA constituted ineffective assistance of counsel. 

The Ninth Circuit Court of Appeals held that the denial of the appellant's motion to reopen his application was not an abuse of discretion, despite the presumption of prejudice that arose from the attorney's failure to file a supporting brief on appeal because the Appellant had no plausible grounds for relief because he failed to show extreme hardship to his U.S. citizen daughter. 

The Court also remanded the motion to reopen for consideration of the Appellant’s voluntary departure after finding that because the Appellant was significantly prejudiced in his appeal of the denial of his application for cancellation of removal by his attorney's failure to file a brief renewing alien's petition for voluntary departure and to notify alien of the denial of his appeal, the Appellant was not on notice of the court’s remand for consideration of his request for voluntary departure.  As a result, he was granted voluntary departure by the Immigration Judge but could not take advantage of it since he did not know his case had been resolved.