Jose Garay v. Eric Holder, Jr. ( 2011 )

FILED
NOT FOR PUBLICATION JUN 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE GERMAN GARAY, No. 10-70935
Petitioner, Agency No. A070-935-147
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Jose German Garay, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reissue its previous decision dismissing his appeal. We have jurisdiction under
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
*
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).
reopen. Hernandez-Velasquez v. Holder, 611 F.3d 1073, 1077 (9th Cir. 2010).
We grant the petition for review and remand.
The BIA abused its discretion in denying Garay’s motion to reissue where it
failed to address Garay’s evidence that he did not receive the BIA’s April 20, 2009,
order dismissing his appeal. See id. (BIA must consider the “weight and
consequences” of petitioner’s evidence of non-receipt). We remand for the BIA to
address the evidence in the first instance. See INS v. Ventura, 537 U.S. 12, 17-18
(2002) (per curiam).
In light of our disposition, we do not address Garay’s remaining contentions.
PETITION FOR REVIEW GRANTED; REMANDED.
2 10-70935