Summary
finding the BIA abused its discretion in weighing as an adverse factor the petitioner's non-attendance at an earlier hearing where no previous proceedings had taken place
Summary of this case from Perez-Portillo v. GarlandOpinion
No. 09-70740 Agency No. A070-953-762
07-06-2012
ALEJANDRO OCHOA-VARONA, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
On Petition for Review of an Order of the
Board of Immigration Appeals
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. 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.