Opinion
No. 06-72439.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed April 6, 2009.
Enrique Ramirez, Esq., Law Office of Enrique Ramirez, San Francisco, CA, for Petitioner.
Joshua E. Braunstein, Esquire, Melissa S. Leibman, Trial, DOJ-U.S. Department of Justice, U.S. Department of Justice, Washington, DC, Ronald E. LeFevre, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A092-674-136.
Before: LEAVY, HAWKINS, and TASHIMA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Cuahutemoc Ramos Lopez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal from an immigration judge's decision denying his motion to reopen removal proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for abuse of discretion, Salta v. INS, 314 F.3d 1076, 1078 (9th Cir. 2002), we grant the petition for review and remand for further proceedings.
The BIA denied Lopez's motion to reopen primarily because Lopez did not submit a sworn affidavit that neither he, nor any responsible party residing at his address, received notice of his rescheduled hearing. Lopez's motion to reopen included an unsworn written statement from his mother, with whom Lopez lived, stating that Lopez did not receive notice of his rescheduled hearing, as well as circumstantial evidence of non-receipt. At the time of its decision, the BIA did not have the benefit of Sembiring v. Gonzales, 499 F.3d 981, 988-990 (9th Cir. 2007) (holding that sufficient circumstantial evidence can overcome the presumption of effective service; petitioner is not required to submit a sworn affidavit alleging non-receipt). We therefore remand for reconsideration of Lopez's motion to reopen.