FILED
NOT FOR PUBLICATION JUN 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAIME SANDOVAL, No. 10-71721
Petitioner, Agency No. A076-381-879
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Jaime Sandoval, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his motion to reopen proceedings held
in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review 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 the denial of a motion to reopen, Celis-Castellano v. Ashcroft, 298 F.3d
888, 890 (9th Cir. 2002), and we review de novo claims of due process violations,
Hernandez v. Mukasey, 524 F.3d 1014, 1017 (9th Cir. 2008). We grant the petition
for review.
The agency abused its discretion by applying a “strong presumption of
effective service” where the record lacks proof of an “attempted delivery and
notification of certified mail.” Arrieta v. INS, 117 F.3d 429, 431 (9th Cir. 1997).
The agency also abused its discretion in denying Sandoval’s motion on the
ground that Sandoval provided no evidence to corroborate his affidavit alleging
non-receipt, where the motion included a corroborating letter from Sandoval’s
former employer. See id. at 432 (“when an alien is seeking to reopen deportation
proceedings on the ground of lack of notice of the deportation hearing, the Grijalva
presumption requires the IJ and BIA to consider the evidence submitted by an alien
which supports the defense of nondelivery or improper delivery of the notice”). It
follows that the BIA abused its discretion in denying Sandoval’s motion to remand
for an evidentiary hearing on the same grounds.
Accordingly, we remand to the BIA with the instruction to remand for
further proceedings before the IJ in accordance with this disposition.
2 10-71721
In light of our decision, we need not reach Sandoval’s remaining
contentions.
PETITION FOR REVIEW GRANTED.
3 10-71721