Gonzalez-Perez v. Gonzales

236 F. App'x 319

Opinion

MEMORANDUM

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Benito Angel Gonzalez-Perez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order adopting and affirming an immigration judge’s order denying his motion to reopen deportation proceedings conducted in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. See Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir.1999). We grant the petition for review and remand.

The BIA abused its discretion in denying Gonzalez-Perez’s motion to reopen because the record does not contain a signed certified mail receipt to indicate that Gonzalez-Perez was properly served with the Order to Show Cause (“OSC”). Without proper service of the OSC, Gonzalez-Perez cannot be charged with receiving the notice of hearing. See Chaidez v. Gonzales, 486 F.3d 1079 (9th Cir.2007) (signature of unknown individual at petitioner’s house on the OSC was not enough to create a presumption of proper delivery to petitioner or a responsible person at his address).

Accordingly, we grant the petition and remand for further proceedings. INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

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.