Armando Salazar-Arvizu v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 5, 2021
• Docket: 19-72939
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 5 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ARMANDO HORACIO SALAZAR- No. 19-72939 ARVIZU, Agency No. A200-947-490 Petitioner,

v. MEMORANDUM*

ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 2, 2021** Phoenix, Arizona

Before: BEA and BUMATAY, Circuit Judges, and CARDONE,*** District Judge.

Armando Salazar-Arvizu, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) decision denying his motion

* 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). *** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. to reissue its earlier decision dismissing his appeal of the IJ’s finding that he is

inadmissible and not eligible to adjust his status to lawful permanent resident. We

have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the

BIA’s denial of a motion to reissue its earlier decision. Hernandez-Velasquez v.

Holder, 611 F.3d 1073, 1077 (9th Cir. 2010) (citing Lainez–Ortiz v. I.N.S., 96 F.3d

393, 395 (9th Cir.1996)). The BIA abuses its discretion when it acts “arbitrar[ily],

irrational[ly], or contrary to law.” Ontiveros–Lopez v. I.N.S., 213 F.3d 1121, 1124

(9th Cir.2000). We deny the petition for review.

The BIA did not abuse its discretion in denying the motion to reissue its

earlier decision because the BIA duly considered the evidence of non-receipt of its

earlier decision and concluded that it was insufficient to rebut the presumption the

BIA fulfilled its duty of service by proper mailing of its earlier decision. See

Hernandez-Velasquez, 611 F.3d at 1078 (citing Singh v. Gonzalez, 494 F.3d 1170,

1172–73 (9th Cir. 2007)). Further, the BIA did not act arbitrarily, irrationally, or

contrary to law in reaching this conclusion. Counsel’s letter of non-receipt was

unsworn and, although Salazar-Arvizu submitted a sworn affidavit, he had moved

to a new address prior to the issuance of the decision without notifying the BIA as

instructed on the Notice of Appeal form and as required by regulation. Cf. Singh v.

I.N.S., 295 F.3d 1037, 1039 (9th Cir. 2002) (reversing denial of motion to reopen if

arbitrary, capricious, or contrary to law). DENIED.