Zarate Cortes v. Gonzales

143 F. App'x 862

Opinion

MEMORANDUM

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Marco Antonio Zarate Cortes, his wife, Maria De Lourdes Robles Sanchez, and their three daughters, Luz, Julissa and Diana Robles, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) denial of their motion to reopen removal proceedings conducted in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion, see Celis-Castellano v. Ashcroft, 298 F.3d 888, 890 (9th Cir.2002), and we grant the petition and remand for further proceedings.

The BIA abused its discretion when it failed to address the affidavit submitted by petitioners’ attorney of record stating that she did not receive notice that the hearing date had been changed from June 25, 2003 to June 23, 2003. See Salta v. INS, 314 F.3d 1076, 1079 (9th Cir.2002) (noting the presumption of delivery is weaker when notice of hearing is delivered by regular mail as opposed to certified mail); Celis-Castellano, 298 F.3d at 892 (noting that in a motion to reopen “[t]he Board must accept the facts in an alien’s affidavit as true unless inherently unbelievable”). We therefore remand for an evidentiary hearing on this issue. See Salta, 314 F.3d at 1079 (“sworn affidavit ... should ordinarily be sufficient to rebut the presumption of delivery and entitle [the petitioner] to an evidentiary hearing to consider the veracity of her allegations”).

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 provided by Ninth Circuit Rule 36-3.