Cleofas Espinosa Malabar v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2024
• Docket: 20-71952
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CLEOFAS ESPINOSA MALABAR, No. 20-71952

Petitioner, Agency No. A208-732-471

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 18, 2024** San Francisco, California

Before: GOULD, SUNG, and DE ALBA, Circuit Judges.

Cleofas Espinosa Malabar, a native and citizen of Mexico, petitions pro se

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

appeal from an Immigration Judge’s (“IJ”) decision denying her motion to reopen

removal proceedings. The IJ ordered Petitioner removed in absentia after she

* 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). failed to appear for a removal hearing on June 20, 2018. Petitioner contends she

did not receive notice of the hearing date because the notice was sent to an old

address rather than her current, new address. On July 27, 2017, Petitioner was

personally served at her old address with an incomplete notice to appear that did

not specify the date and time of her hearing. On August 14, 2017, a supplementary

notice of hearing with the date and time was mailed to her old address. We have

jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition in part and

dismiss it in part.

“Where, as here, the BIA agrees with the IJ decision and also adds its own

reasoning, we review the decision of the BIA and those parts of the IJ’s decision

upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir.

2019). “We review the denial of a motion to reopen for an abuse of discretion.”

Sembiring v. Gonzales, 499 F.3d 981, 985 (9th Cir. 2007). “We review factual

findings for substantial evidence and legal questions de novo.” Manzano v.

Garland, 104 F.4th 1202, 1206 (9th Cir. 2024) (cleaned up).

A noncitizen may move to reopen “at any time” if she did not receive proper

notice of the removal proceedings. 8 U.S.C. § 1229a(b)(5)(C)(ii). The government

is entitled to a presumption of effective service, but this presumption is “weaker”

where, as here, the government served notice by regular mail rather than certified

mail. See Sembiring, 499 F.3d at 987.

2 The BIA abused its discretion in denying Petitioner’s motion to reopen

because (1) the agency failed to consider all relevant evidence, and (2) Petitioner

has met her burden to overcome the presumption of effective service.

First, generally, “[t]he BIA abuses its discretion when it denies [a]

petitioner’s claim with no indication that it considered all of the evidence”

presented by the petitioner. Avagyan v. Holder, 646 F.3d 672, 681 (9th Cir. 2011).

“[T]he BIA has a duty to weigh all relevant evidence when there is a factual

dispute about whether a document has been mailed by the [agency] to a petitioner.”

Hernandez-Velasquez v. Holder, 611 F.3d 1073, 1078 (9th Cir. 2010). Here,

Petitioner submitted evidence that she had mailed a change of address form to the

Department of Homeland Security (“DHS”) dated July 1, 2017. The BIA

discredited this evidence because the form predates both personal service of the

notice to appear at her old address and her asylum interview, where Petitioner did

not seek revisions to the old address listed in her application. Yet the agency

wholly failed to consider other documents that support the form’s veracity. For

example, Petitioner submitted an Internal Revenue Service letter dated July 21,

2017, that lists her new address. A bank statement for the period from July 19,

2017, through August 16, 2017, and a furniture invoice dated as early as February

11, 2017, also use the new address. The BIA had a duty to weigh this relevant

evidence, which tends to show that Petitioner had moved to the new address, when

3 considering whether Petitioner received proper notice of the hearing.

Second, Petitioner has presented sufficient evidence to overcome the

presumption of effective service. “The test for whether [a noncitizen] has produced

sufficient evidence to overcome the presumption of effective service by regular

mail is practical and commonsensical rather than rigidly formulaic.” Sembiring,

499 F.3d at 988. Factors to consider include the petitioner’s incentive to appear at a

removal hearing and the contents of her affidavit. See Perez-Portillo v. Garland,

56 F.4th 788, 794 (9th Cir. 2022). Here, Petitioner did not have a motive to avoid

the hearing because she is the one who “initiate[d] a proceeding to obtain a

benefit.” Salta v. I.N.S., 314 F.3d 1076, 1079 (9th Cir. 2002). Fifteen years after

entering the U.S., Petitioner voluntarily approached the government when she filed

an asylum application and attended an interview with an asylum officer. See

Sembiring, 499 F.3d at 988–89 (explaining that the petitioner’s affirmative asylum

filing constituted circumstantial evidence in support of non-receipt). Following the

interview, Petitioner’s asylum application was referred to an immigration court for

further evaluation. Additionally, Petitioner has explained she was motivated to

attend her hearing because she believed she was statutorily eligible for cancellation

of removal based on hardship to one of her children. While the BIA faulted

Petitioner for presenting only “a written assertion of non-receipt, not a sworn

affidavit,” such an affidavit is “not always necessary” to establish non-receipt,

4 particularly when the petitioner is proceeding pro se, as Petitioner is here. Id. at

989–90; see also Perez-Portillo, 56 F.4th at 795 (“Although [the petitioner’s]

statements were not in the form of an affidavit, we have not required such from pro

se petitioners.”). Therefore, the denial of Petitioner’s motion to reopen was an

abuse of discretion.

Petitioner also argues the BIA should have reopened her case under its sua

sponte authority. We lack jurisdiction to review the agency’s sua sponte reopening

decision because Petitioner fails to identify a legal or constitutional error affecting

the BIA’s decision. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).

PETITION GRANTED in part, DISMISSED in part, and

REMANDED.

Costs are awarded to Petitioner.