Maricela Duarte-Gutierrez v. Eric Holder, Jr. , 487 F. App'x 383 ( 2012 )

FILED
NOT FOR PUBLICATION NOV 16 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARICELA DUARTE-GUTIERREZ, No. 11-72725
Petitioner, Agency No. A072-713-202
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 13, 2012 **
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Maricela Duarte-Gutierrez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ order dismissing her appeal from an
immigration judge’s decision denying her motion to reopen deportation
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 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review for abuse of discretion the denial of a motion to reopen, Arrieta v. INS,
117 F.3d 429, 430 (9th Cir. 1997) (per curiam), and we grant the petition for
review and remand.
The agency abused its discretion in denying Duarte-Gutierrez’s motion to
reopen on the ground that he failed to establish lack of notice. The record contains
a returned certified mail receipt with the United States Postal Service notation
“NSN RB1” and the BIA erred in failing to take administrative notice of the fact
that “NSN” stands for “no such number.” 8 C.F.R. §1003.1(d)(3)(iv)(the BIA may
take administrative notice of commonly known facts). Accordingly, we grant the
petition and remand for further proceedings. INS v. Ventura, 537 U.S. 12, 16-17
(2002) (per curiam).
In light of our disposition, we need not reach Duarte-Gutierrez’s remaining
contentions.
We deny the government’s motion to strike.
PETITION FOR REVIEW GRANTED; REMANDED.
2 11-72725