Jose Garay v. Eric Holder, Jr.

439 F. App'x 577

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 22, 2011
• Docket: 10-70935
• Status: Unpublished

Opinion

MEMORANDUM **

Jose German Garay, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reissue its previous decision dismissing his appeal. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Hernandez-Velasquez v. Holder, 611 F.3d 1073, 1077 (9th Cir.2010). We grant the petition for review and remand.

The BIA abused its discretion in denying Garay’s motion to reissue where it failed to address Garay’s evidence that he did not receive the BIA’s April 20, 2009, order dismissing his appeal. See id. (BIA must consider the “weight and consequences” of petitioner’s evidence of non-receipt). We remand for the BIA to address the evidence in the first instance. See INS v. Ventura, 537 U.S. 12, 17-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

In light of our disposition, we do not address Garay’s remaining contentions.

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.