Feng Zou v. Mukasey

271 F. App'x 584

Opinion

MEMORANDUM

**

Feng Zou, a native and citizen of China, petitions pro se for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s 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, Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002), we grant the petition for review and remand.

The motion to reopen filed by Zou’s former counsel Walter Burner included an unsworn written statement in which Zou stated that he did not receive the notice of his advanced hearing date. The agency did not have the benefit of our recent decision in Sembiring v. Gonzales, 499 F.3d 981, 988-90 (9th Cir.2007) (adopting a “practical and commonsensical” test to determine whether proper notice was provided, and holding that an unsworn written statement of non-receipt was sufficient where requiring a sworn affidavit would “unnecessarily elevate form over substance” in case of claimed persecution). We therefore remand for reconsideration of Zou’s motion to reopen.

PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.