Mejia v. Gonzales

124 F. App'x 589

Opinion

MEMORANDUM

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Susana Martinez Mejia, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“Board”) summary affirmance of an immigration judge’s (“IJ”) denial of her motion to reopen her in absentia removal proceedings. We have jurisdiction pursuant to 8 U.S.C § 1252. We for abuse of discretion the denial of a motion to reopen, Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000), and we grant the petition for review.

We conclude that the IJ abused his discretion in finding that Mejia failed to rebut the presumption of delivery by regular mail because Mejia attested that she did not receive notice of her rescheduled hearing. See Salta v. INS, 314 F.3d 1076, 1079 (9th Cir.2002) (stating that a petitioner’s assertion that she failed to receive notice of a hearing is sufficient to rebut the presumption of delivery).

We remand the case to the Board with instructions to remand to the IJ to conduct an evidentiary hearing to determine whether Mejia has rebutted the presumption of delivery of the notice of removal hearing, thereby entitling her to consideration of her motion to reopen.

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 may be provided by Ninth Circuit Rule 36-3.