Gaspar-Francisco v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 11, 2025
• Docket: 22-126
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 11 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUANA GASPAR- No. 22-126 FRANCISCO; EMANUEL GASPAR- Agency Nos. GASPAR; JUANA SENAIDA GASPAR- A209-397-960 GASPAR, A209-397-962 A209-397-961 Petitioners,

v. MEMORANDUM*

PAMELA J. BONDI, Attorney General,

Respondent.

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

Submitted February 4, 2025** Pasadena, California

Before: MILLER, LEE, and DESAI, Circuit Judges.

Juana Gaspar-Francisco and her two children—all citizens and natives of

Guatemala—petition for review of the Board of Immigration Appeals’ (BIA) denial

* 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). of their motion to reconsider a denial of their motion to reopen. That earlier motion,

made under 8 U.S.C. § 1229a(b)(5)(C)(ii), asked the BIA to reopen the case on the

basis that Gaspar-Francisco allegedly never received notice of the hearing at which

the Immigration Judge (IJ) ordered her and her children removed in absentia. We

deny the petition.

We have jurisdiction under 8 U.S.C. § 1252(a). We review the BIA’s denial

of a motion to reconsider for abuse of discretion. Lara-Torres v. Ashcroft, 383 F.3d

968, 972 (9th Cir. 2004). The BIA abuses its discretion only when it acts arbitrarily,

irrationally, or contrary to law. Id. We review purely legal questions de novo and

factual findings for substantial evidence. Najmabadi v. Holder, 597 F.3d 983, 986

(9th Cir. 2010).

The BIA did not abuse its discretion in determining that Gaspar-Francisco

presented insufficient evidence to overcome the presumption that she received the

notice via regular mail. See Salta v. INS, 314 F.3d 1076, 1078-79 (9th Cir. 2002)

(stating the general presumption that a petitioner receives notice of removal

proceedings sent by regular mail). The test to determine if a petitioner can overcome

the delivery presumption is “practical and commonsensical.” Sembiring v.

Gonzales, 499 F.3d 981, 988 (9th Cir. 2007).

In its original decision denying the motion to reopen, the BIA acknowledged

Gaspar-Francisco’s declaration that she never received the notice, but it explained

2 22-126 that Gaspar-Francisco did not provide sufficient evidence to rebut the presumption

of delivery because she did not support her motion with a declaration from the

homeowner or other residents “regarding the alleged non-delivery of the notice.”

With her motion to reconsider, Gaspar-Francisco submitted a declaration claiming

that she did not receive notice of the hearing but stating that she was unsure if her

non-receipt was caused by her landlords who occasionally mishandle her mail.

Gaspar-Francisco also submitted declarations from her landlords confirming that

they occasionally mishandle mail. However, the declarations do not expressly state

that the landlords lost the notice of Gaspar-Francisco’s hearing or that they never

received the notice in the first place.

Because neither Gaspar-Francisco’s nor her landlords’ declarations prove that

she or a responsible party at the address did not receive notice, the BIA’s

determination that the landlords’ declarations were “inconclusive and unpersuasive”

was not arbitrary, irrational, or contrary to law. See Salta, 314 F.3d at 1079;

Sembiring, 499 F.3d at 990–91. Without more, the declarations’ vague and

speculative assertions cannot defeat the presumption that Gaspar-Francisco received

notice. See In re G-Y-R, 23 I. & N. Dec. 181, 189 (B.I.A. 2001) (explaining that a

petitioner can be charged with receiving proper notice where the notice “reaches the

correct address but does not reach the [petitioner] through some failure in the internal

3 22-126 workings of the household”).

We DENY the petition.

4 22-126