FILED
NOT FOR PUBLICATION JUN 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KYRIA MELGAR, No. 09-73200
Petitioner, Agency No. A095-023-229
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
Kyria Melgar, a native and citizen of Costa Rica, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an
immigration judge’s decision denying her motion to reopen removal proceedings
conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. Reviewing
*
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).
for abuse of discretion, Lo v. Ashcroft, 341 F.3d 934, 937 (9th Cir. 2003), we grant
the petition for review and remand for further proceedings.
The BIA abused its discretion in concluding that Melgar failed to overcome
the presumption of delivery where she presented a sworn declaration that she did
not receive the hearing notice, see Sembiring v. Gonzales, 499 F.3d 981, 986 (9th
Cir. 2007) (discussing the weaker presumption of delivery of a hearing notice sent
through regular mail), and the “proof of attempted delivery” is a record copy of a
mailing envelope containing no name or address, see id. at 989. Moreover, the
BIA failed to take into account that Melgar had affirmatively applied for relief and
moved to reopen her case within weeks of being ordered removed in absentia. See
id. at 988 (“The test for whether an alien has produced sufficient evidence to
overcome the presumption of effective service by regular mail is practical and
commonsensical rather than rigidly formulaic.”); see also Matter of M-R-A-, 24
I&N Dec. 665, 674 (BIA 2008) (listing affirmative relief applications and diligence
among the factors for consideration in determining whether an alien has rebutted
the weaker presumption of delivery).
In light of our disposition, we need not address Melgar’s remaining
contention.
PETITION FOR REVIEW GRANTED; REMANDED.
2 09-73200