Armando Salazar-Arvizu v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO HORACIO SALAZAR- No. 19-72939
ARVIZU,
Agency No. A200-947-490
Petitioner,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 2, 2021**
Phoenix, Arizona
Before: BEA and BUMATAY, Circuit Judges, and CARDONE,*** District Judge.
Armando Salazar-Arvizu, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) decision denying his motion
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
to reissue its earlier decision dismissing his appeal of the IJ’s finding that he is
inadmissible and not eligible to adjust his status to lawful permanent resident. We
have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
BIA’s denial of a motion to reissue its earlier decision. Hernandez-Velasquez v.
Holder, 611 F.3d 1073, 1077 (9th Cir. 2010) (citing Lainez–Ortiz v. I.N.S., 96 F.3d
393, 395 (9th Cir.1996)). The BIA abuses its discretion when it acts “arbitrar[ily],
irrational[ly], or contrary to law.” Ontiveros–Lopez v. I.N.S., 213 F.3d 1121, 1124
(9th Cir.2000). We deny the petition for review.
The BIA did not abuse its discretion in denying the motion to reissue its
earlier decision because the BIA duly considered the evidence of non-receipt of its
earlier decision and concluded that it was insufficient to rebut the presumption the
BIA fulfilled its duty of service by proper mailing of its earlier decision. See
Hernandez-Velasquez, 611 F.3d at 1078 (citing Singh v. Gonzalez, 494 F.3d 1170,
1172–73 (9th Cir. 2007)). Further, the BIA did not act arbitrarily, irrationally, or
contrary to law in reaching this conclusion. Counsel’s letter of non-receipt was
unsworn and, although Salazar-Arvizu submitted a sworn affidavit, he had moved
to a new address prior to the issuance of the decision without notifying the BIA as
instructed on the Notice of Appeal form and as required by regulation. Cf. Singh v.
I.N.S., 295 F.3d 1037, 1039 (9th Cir. 2002) (reversing denial of motion to reopen if
arbitrary, capricious, or contrary to law). DENIED.
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