NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOLORES CANDELARIA ESTEBAN- No. 15-73252
MANUEL and JUAN ESTEBAN-
MANUEL, Agency Nos. A206-462-884
A206-462-885
Petitioners,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 23, 2017**
Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.
Dolores Candelaria Esteban-Manuel and Juan Esteban-Manuel, natives and
citizens of Guatemala, petition for review of the Board of Immigration Appeals’
order dismissing their appeal from an immigration judge’s decision denying their
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
motion to reopen removal proceedings conducted in absentia. We have jurisdiction
under 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 agency abused its discretion in denying petitioners’ motion to reopen
where it relied on conjecture in petitioner’s affidavit regarding the possible
discarding of mail, and did not consider all of the evidence that petitioners offered
to rebut the presumption of delivery. See id. at 986-88 (describing evidence
relevant to overcome presumption of effective service by regular mail); Salta v.
INS, 314 F.3d 1076, 1079 (9th Cir. 2002) (“delivery by regular mail does not raise
the same ‘strong presumption’ [of delivery] as certified mail, and less should be
required to rebut such a presumption.”). On remand, the BIA should consider as
part of its notice analysis petitioners’ compliance with an Immigration and
Customs Enforcement check-in order both before and after the in absentia removal
order was entered. See Sembiring, 499 F.3d at 989 (lack of motive to avoid
immigration proceedings is a factor to be considered).
PETITION FOR REVIEW GRANTED; REMANDED.
2 15-73252