Jue Shen v. Holder

Ninth Circuit

Jue Shen v. Holder

334 F. App'x 804

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 26, 2009

DocketNo. 06-74404

StatusPublished

This text of 334 F. App'x 804 (Jue Shen v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Jue Shen v. Holder, 334 F. App'x 804 (9th Cir. 2009).

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Opinion

MEMORANDUM

**

Jue Shen and Jianyong Yang, natives and citizens of China, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reissue the BIA’s prior order. We review for abuse of discretion, Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004), amended by 404 F.3d 1105 (9th Cir.2005), and we grant the petition and remand for further proceedings.

The BIA abused its discretion by failing to address the affidavit petitioners submitted to show that they did not receive the BIA’s March 29, 2006 order. See Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir.2007) (presumption of proper mailing created by transmittal cover letter may be overcome by evidence of non-receipt by a petitioner or counsel). We remand for the BIA to review the evidence in the first instance and to determine whether it is sufficient to overcome the presumption of mailing.

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.

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MEMORANDUM

**

Jue Shen and Jianyong Yang, natives and citizens of China, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reissue the BIA’s prior order. We review for abuse of discretion, Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004), amended by 404 F.3d 1105 (9th Cir.2005), and we grant the petition and remand for further proceedings.

The BIA abused its discretion by failing to address the affidavit petitioners submitted to show that they did not receive the BIA’s March 29, 2006 order. See Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir.2007) (presumption of proper mailing created by transmittal cover letter may be overcome by evidence of non-receipt by a petitioner or counsel). We remand for the BIA to review the evidence in the first instance and to determine whether it is sufficient to overcome the presumption of mailing.

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.

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334 F. App'x 804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jue-shen-v-holder-ca9-2009.

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