Wenjin Liang v. William Barr

Opinion

FILED NOT FOR PUBLICATION APR 18 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WENJIN LIANG, No. 17-71319

Petitioner, Agency No. A205-172-929

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted April 12, 2019 Pasadena, California

Before: TASHIMA and BYBEE, Circuit Judges, and HARPOOL,** District Judge.

Wenjin Liang, a native and citizen of China, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) order denying his motion to reopen removal

proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri, sitting by designation. We review for abuse of discretion the denial of a motion to reopen. Sembiring v.

Gonzales, 499 F.3d 981, 985 (9th Cir. 2007). We grant the petition for review and

remand.

A weak presumption of effective delivery applies to service of notices sent

by regular mail. See id. at 986–87 (“Where a petitioner actually initiates a

proceeding to obtain a benefit . . . and has no motive to avoid the hearing, a sworn

affidavit from [petitioner] that neither [he] nor a responsible party residing at his

address received the notice should ordinarily be sufficient to rebut the presumption

of [regular mail] delivery.” (citation omitted)). Here, Liang presented a sworn

affidavit that he did not receive any notices by mail after initiating proceedings by

filing an asylum application. See id. at 988 (“[Filing an] asylum application falls

directly within [the] description of ‘initiat[ing] a proceeding to obtain a benefit.’”

(citation omitted)). We thus grant the petition for review and remand to the agency

with instructions to reconsider, in light of Liang’s sworn affidavit, its finding that

Liang may be charged with constructive receipt of the Notice to Appear dated

April 23, 2012.

We do not consider Liang’s argument that the government violated 8 U.S.C.

§ 1229(a)(1)(F) by failing to provide him with written notice of the requirement

that he provide a mailing address. We find that Liang adequately preserved this

2 argument in his pleadings below but that neither the IJ nor the BIA addressed this

argument. Where the agency lacked “the opportunity to address the matter in the

first instance in light of its own expertise,” we remand the matter. INS v. Orlando

Ventura, 537 U.S. 12, 16–17 (2002). Liang is free to raise this argument on

remand. Likewise, we do not review the IJ’s finding that Liang was a removable

alien. The administrative record does not indicate that Liang challenged the merits

of his removability below. Our review is limited to the administrative record

underlying the BIA’s decision, Barrientos v. Lynch, 829 F.3d 1064, 1067 n.1 (9th

Cir. 2016), and we thus cannot reach this argument.

PETITION FOR REVIEW GRANTED; REMANDED.1

1 The government’s motion to remand without oral argument, filed December 6, 2018, is DENIED as moot. 3