FILED
NOT FOR PUBLICATION JUN 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALVARO PULIDO, No. 08-72486
Petitioner, Agency No. A070-784-076
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Sumitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
Alvaro Pulido, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ order dismissing his appeal from an immigration
judge’s decision denying his motion to reopen removal proceedings held in
absentia. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for abuse of
*
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).
discretion, Salta v. INS, 314 F.3d 1076, 1078 (9th Cir. 2002), we grant the petition
for review.
The agency abused its discretion in denying Pulido’s motion to reopen
where he rebutted the presumption of effective service by submitting sworn
declarations explaining why he and his wife had not received the Notice to Appear
(“NTA”), and the record did not contain proof of attempted delivery to Pulido’s
address. See 8 U.S.C. § 1229(c) (service of NTA by mail is sufficient if there is
proof of attempted delivery to alien’s last address); Arrieta v. INS, 117 F.3d 429,
432 (9th Cir. 1997) (letter by petitioner is substantial and probative evidence that
may rebut presumption of effective service).
PETITION FOR REVIEW GRANTED; REMANDED.
2 08-72486