FILED
NOT FOR PUBLICATION MAR 19 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERICK PAOLO MELGAR DUARTE, No. 12-73631
Petitioner, Agency No. A070-553-138
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 10, 2014**
Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges.
Erick Paolo Melgar Duarte, a native and citizen of Guatemala, petitions for
review of an order of the Board of Immigration Appeals (“BIA”) dismissing his
appeal from the decision of an immigration judge (“IJ”) denying his motion to
reopen removal proceedings conducted in absentia. We have jurisdiction under
*
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).
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
reopen. Sembiring v. Gonzales, 499 F.3d 981, 985 (9th Cir. 2007). We grant the
petition for review and remand.
The BIA abused its discretion by denying Melgar Duarte’s motion to reopen
based on lack of notice because Melgar Duarte presented sufficient evidence of
nondelivery of the hearing notice to overcome the weak presumption of effective
delivery applicable to service of notices sent by regular mail. See
Mejia-Hernandez v. Holder, 633 F.3d 818, 822 (9th Cir. 2011) (“Where a
petitioner actually initiates a proceeding to obtain a benefit, appears at an earlier
hearing, and has no motive to avoid the hearing, a sworn affidavit from petitioner
that neither [he] nor a responsible party residing at [his] address received the notice
should ordinarily be sufficient to rebut the presumption of [regular mail] delivery.”
(citation omitted)); see also Sembiring, 499 F.3d at 988 (“[Filing an] asylum
application falls directly within [the] description of ‘initiat[ing] a proceeding to
obtain a benefit.’” (citation omitted)).
We therefore grant the petition for review and remand the matter to the BIA
with directions that it remand to the IJ to grant Melgar Duarte’s motion to reopen
in order to rescind the in absentia removal order entered against him.
PETITION FOR REVIEW GRANTED; REMANDED.
2 12-73631