Del Rosario Lagunas Morales v. Gonzales

141 F. App'x 614

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 4, 2005
• Docket: No. 04-73749
• Status: Published

Opinion

MEMORANDUM

**

Maria Del Rosario Lagunas Morales, her husband, Jose Alejandro Barcenas and her son, Jose Alejandro Barcenas Lagunas, each a native and citizen of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) dismissal of their appeal of an immigration judge’s denial of their motion to reopen proceedings held in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion, Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002), and we deny the petition for review.

Petitioners contend that they did not receive the Notice to Appear immigration officials sent to them by regular mail in 2003. The BIA did not abuse its discretion in concluding that Petitioners failed to rebut the presumption of delivery created by regular mail, because the affidavit Petitioners submitted with their motion to reopen stated that Petitioners did not receive the Notice to Appear, but it did not state that no other responsible party living at their address received the Notice to Appear. See id. at 1079 (holding that a sworn affidavit that neither the alien nor another responsible party residing at the alien’s address received the notice will ordinarily rebut the presumption of delivery created by regular mail).

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.