Rosas-Valle v. Ashcroft

113 F. App'x 298

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 22, 2004
• Docket: Nos. 03-74090; Agency Nos. A72-112-190, A72-112-189, A72-112-188, A72-112-187, A72-112-186, A72-112-185, A72-112-184
• Status: Published

Opinion

MEMORANDUM

**

Abraham Rosas-Valle, his wife, and their five children, natives and citizens of Mexico, petition for review of an order of the Board of Immigration Appeals (“BIA”) denying their motion to reopen deportation proceedings. Because the transitional rules apply, see Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), we have jurisdiction under 8 U.S.C. § 1105a(a). We review for abuse of discretion the denial of a motion to reopen and review de novo due process claims. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002). We deny the petition for review.

Petitioners contend that they were deprived of due process because they did not receive the BIA’s order dated December 17, 2002, which summarily affirmed an Immigration Judge’s denial of their application for asylum and withholding of deportation, and therefore they could not file a timely petition for review with this Court. We disagree.

The record shows that the BIA mailed the December 2002 order to the address provided on petitioners’ counsel’s Notice of Entry of Appearance (Form EOIR-27) dated September 24, 2001. The BIA did not abuse its discretion by denying petitioners’ motion to reopen because they did not present any evidence to rebut the presumption that the BIA’s order was delivered to counsel at this address. See Busquets-Ivars v. Ashcroft, 333 F.3d 1008, 1010 (9th Cir.2003) (there is a rebuttable presumption that properly directed mail reached its destination and was received by the addressee).

We lack jurisdiction to review the BIA’s December 2002 order because petitioners did not file a timely petition for review from that order. See Martinez-Serrano v. INS, 94 F.3d 1256, 1258 (9th Cir.1996).

PETITION FOR REVIEW DENIED.

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.