Fernandez-Miranda v. Holder

FILED
NOT FOR PUBLICATION JUN 09 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JAVIER FERNANDEZ-MIRANDA; et No. 08-70279
al.,
Agency Nos. A095-295-931
Petitioners, A095-295-932
A095-295-933
v.

ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted May 25, 2010 **

Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

Javier Fernandez-Miranda, Maria Virginia Guevara-Gabriel, and their

daughter, natives and citizens of Mexico, petition pro se for review of the Board of

Immigration Appeals’ (“BIA”) order denying their motion to reissue. We have

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. Reviewing for abuse of discretion, Perez v.

Mukasey, 516 F.3d 770, 773 (9th Cir. 2008), we grant the petition for review.

The BIA abused its discretion by failing to specifically address Fernandez-

Miranda’s sworn statement that petitioners did not receive notice of the BIA’s

December 21, 2007, order. See Singh v. Gonzales, 494 F.3d 1170, 1172-73 (9th

Cir. 2007) (presumption of proper mailing may be overcome by evidence of non-

receipt by petitioner or counsel). We remand for the BIA to address the evidence

of non-receipt in the first instance and determine whether it is sufficient to

overcome the presumption of mailing. See id.

PETITION FOR REVIEW GRANTED; REMANDED

2 08-70279