Gonzalez Talamantes v. Mukasey , 382 F. App'x 631 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANA EPIFANIA GONZALEZ No. 07-71537
TALAMANTES,
Agency No. A096-360-451
Petitioner,
v. MEMORANDUM *
MICHAEL B. MUKASEY, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Ana Epifania Gonzalez Talamantes, a native and citizen of Mexico, petitions
pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying her
*
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).
motion to reissue the BIA’s prior order. We review for abuse of discretion, Lara-
Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004), amended by 404 F.3d 1105(9th Cir. 2005), and we grant the petition and remand for further proceedings.
The BIA abused its discretion by failing to address the declaration Gonzalez
Talamantes submitted to show that she did not receive the BIA’s November 22,
2006 order. See Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir. 2007)
(presumption of proper mailing created by transmittal of cover letter may be
overcome by evidence of non-receipt by a petitioner or counsel). We remand for
the BIA to review the evidence in the first instance and to determine whether it is
sufficient to overcome the presumption of mailing.
PETITION FOR REVIEW GRANTED; REMANDED.
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