Fonseca-Vidaurre v. Holder , 371 F. App'x 865 ( 2010 )

FILED
NOT FOR PUBLICATION MAR 25 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JUAN MIGUEL FONSECA-VIDAURRE, No. 07-72977
Petitioner, Agency No. A079-521-652
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Juan Miguel Fonseca-Vidaurre, a native and citizen of Peru, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen and reissue the BIA’s prior order. We have jurisdiction pursuant to 8
*
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).
KS/Research
U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen
and review de novo claims of due process violations, Cano-Merida v. INS, 311
F.3d 960, 964 (9th Cir. 2002), and we deny the petition for review.
The BIA did not abuse its discretion or violate due process in denying
Fonseca-Vidaurre’s motion to reissue, where it considered his evidence of non-
receipt and properly concluded that it was insufficient to rebut the presumption of
proper mailing. See Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir. 2007) (BIA
fulfills its statutory duty of service if a decision was properly mailed); see also
Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a
due process claim).
PETITION FOR REVIEW DENIED.
KS/Research 2 07-72977