Gutierrez-Carrillo v. Gonzales

131 F. App'x 589

Opinion

MEMORANDUM

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Liliana Jasive Gutierrez-Carrillo (“Gutierrez”), a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ summary affirmance of an Immigration Judge’s (“IJ”) denial of her motion to reopen her removal proceedings and rescind her in absentia removal order. We have jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing for abuse of discretion, see Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000), we grant the petition for review and remand for an evidentiary hearing.

In a motion to reopen, the IJ “must accept the facts in an alien’s affidavit as true unless inherently unbelievable.” Celis-Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir.2002). We conclude that the presence of Gutierrez’s name on the relevant fax cover sheet is insufficient to render her declaration “inherently un-' believable.” We therefore remand the proceedings for reconsideration of whether Gutierrez rebutted the presumption of delivery by stating under oath that she did not receive notice of her rescheduled hearing. See Salta v. INS, 314 F.3d 1076, 1079 (9th Cir.2002) (“[A] sworn affidavit from [a petitioner] that neither she nor a responsible party residing at her ■address received the notice should ordinarily be sufficient to rebut the presumption of delivery and entitle [her] to an evidentiary hearing to consider the veracity of her allegations.”).

PETITION FOR REVIEW GRANTED; REMANDED.

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.