Jose Perez-Castro v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUN 21 2011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 GUADALUPE PEREZ-CASTRO, No. 09-74084
Petitioner, Agency No. A095-724-957
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 Guadalupe Perez-Castro, a native and citizen of Mexico, petitions pro
se for review of the Board of Immigration Appeals’ order dismissing his appeal
from an immigration judge’s decision denying his motion to reopen removal
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. Sembiring v.
Gonzales, 499 F.3d 981, 985 (9th Cir. 2007). We grant the petition for review and
remand for further proceedings.
The agency abused its discretion by denying Perez-Castro’s motion to
reopen where he submitted a sworn affidavit from his counsel attesting to non-
receipt of the notice rescheduling his hearing, had a consistent record of appearing
for prior proceedings, attempted to attend his hearing on its originally scheduled
date, and promptly moved to reopen his proceedings after learning he had been
ordered removed in absentia. See id. at 988-89 (the weaker presumption of service
applicable to hearing notices sent by regular mail may be rebutted by a sworn
affidavit and any relevant circumstantial evidence of non-receipt).
In light of our disposition, we need not address Perez-Castro’s remaining
contentions.
PETITION FOR REVIEW GRANTED; REMANDED.
2 09-74084