FILED
NOT FOR PUBLICATION JUL 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALEJANDRO OCHOA-VARONA, No. 09-70740
Petitioner, Agency No. A070-953-762
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 26, 2012 **
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
Alejandro Ochoa-Varona, 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 removal
proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252.
*
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).
Reviewing for abuse of discretion, Sembiring v. Gonzales, 499 F.3d 981, 985 (9th
Cir. 2007), we grant the petition for review and remand for further proceedings.
The BIA abused its discretion in concluding that Ochoa-Varona failed to
overcome the presumption of delivery of his hearing notice where he presented a
sworn affidavit that he did not receive the hearing notice, the record contains only
weak evidence that the notice was actually mailed, and Ochoa-Varona had
affirmatively applied for relief and promptly moved to reopen his case after being
ordered removed in absentia. See id. at 988-89 (the weaker presumption of service
for notices sent by regular mail may be rebutted by a sworn affidavit and any
relevant circumstantial evidence of non-receipt). The BIA abused its discretion in
weighing as an adverse factor that Ochoa-Varona had not attended an earlier
hearing, where “no previous [removal] proceedings had taken place.” See id. at
989.
We therefore grant the petition for review and remand to the BIA with
directions to remand to the IJ to grant Ochoa-Varona’s motion to reopen and
rescind his in absentia removal order. See id. at 991.
PETITION FOR REVIEW GRANTED; REMANDED.
2 09-70740