Dubon-Soto v. Holder

FILED
NOT FOR PUBLICATION MAR 21 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ANA BELLA DUBON-SOTO, No. 07-70100

Petitioner, Agency No. A077-123-519

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, 2011 **
Pasadena, California

Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

Ana Bella Dubon-Soto, a native and citizen of Honduras, petitions for

review of an order of the Board of Immigration Appeals (“BIA”) dismissing her

appeal from an immigration judge’s (“IJ”) order denying her motion to reopen,

following an in absentia order of removal. The BIA’s denial of a motion to reopen

*
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).
is reviewed for abuse of discretion. Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.

2000). The BIA abuses its discretion when it acts “arbitrarily, irrationally, or

contrary to the law.” Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005)

(quoting Lainez-Ortiz v. INS, 96 F.3d 393, 395 (9th Cir. 1996)). Our jurisdiction is

governed by 8 U.S.C. § 1252, and we grant in part and dismiss in part the petition

for review.

Under 8 U.S.C. § 1229a(b)(5)(A), if an alien fails to appear at his removal

hearing, the alien “ shall be ordered removed in absentia if the [government]

establishes by clear, unequivocal, and convincing evidence that . . . written notice

[of the hearing] was . . . provided [to the alien or the alien’s counsel of record] and

that the alien is removable.” 8 U.S.C. § 1229a(b)(5)(A). However, an order of

removal entered in absentia may be rescinded “upon a motion to reopen filed at

any time if the alien demonstrates that the alien did not receive notice” of the

removal hearing. 8 U.S.C. § 1229a(b)(5)(C)(ii); 8 C.F.R. § 1003.23(iii)(A)(2).

The BIA abused its discretion in affirming the IJ’s denial of the motion to

reopen. The IJ based its denial on a finding that Dubon-Soto was personally

served with the Notice to Appear and was properly notified of the date, time, and

place of the removal hearing. This finding is without any support in the record.

The Immigration Court did issue a Notice of Hearing, but the Certificate of Service

2
attached to it does not indicate that it was served either upon Dubon-Soto or her

counsel of record. The checkboxes that might tend to show that either Dubon-Soto

or her attorney were served with the Notice of Hearing are both blank. The

checkboxes indicate service only upon the former Immigration and Naturalization

Service. Moreover, the Certificate of Service does not indicate whether the Notice

was served personally or by mail. There is no additional evidence in the

administrative record showing that Dubon-Soto was served by mail at the address

she provided.

We have previously recognized that “[n]on-receipt [of the Notice of

Hearing] may be shown by a single piece of evidence, such as when evidence

shows that an incorrect address was used.” Sembiring v. Gonzales, 499 F.3d 981,

988 (9th Cir. 2007). Here, the Notice of Hearing itself demonstrates that Dubon-

Soto was not served with the document, and the government offered no other

evidence that notice was provided.

Because Dubon-Soto’s removal order was entered in absentia, our

jurisdiction is limited to the validity of the notice, the reasons for the alien’s

absence from the proceeding, and the alien’s removability. 8 U.S.C. §

1229a(b)(5)(D). Therefore, we lack jurisdiction to review Dubon-Soto’s

3
contentions regarding her eligibility for temporary protected status.

Petition for review is GRANTED IN PART, DISMISSED IN PART, and
REMANDED to the BIA for further proceedings. The government shall bear
the costs of this appeal.