Mei Cao v. Mukasey
Mei Cao v. Mukasey
Opinion of the Court
MEMORANDUM
Mei Cao, a native and citizen of the People’s Republic of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her second motion to reopen removal proceedings, in which she was ordered removed in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion, Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000), and we grant the petition for review in part, deny it in part, and remand.
The BIA abused its discretion in rejecting Cao’s contention that she was not provided proper written notice of the hearing she missed. The BIA reaffirmed its pri- or, incorrect determination that Cao was personally served with the notice of hearing and, as a consequence, did not properly consider the allegations in Cao’s affidavit. See Celis-Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir. 2002) (allegations in alien’s affidavit supporting motion to reopen must be accepted as true unless inherently unbelievable). Moreover, the BIA’s decision does not indicate that it considered factors we have held are relevant: the sufficiency of the government’s evidence supporting the government’s contention that the notice of hearing was mailed to Cao’s address; and whether Cao had a motive to avoid the hearing, given her potential eligibility for asylum, withholding of removal and protection under the Convention Against Torture, and the $5,000 bond she paid. See Sembiring v. Gonzales, 499 F.3d 981, 988 (9th Cir. 2007) (adopting a “practical and commonsensical” test to determine whether proper notice was provided). Accordingly, we remand for the BIA to reconsider Cao’s motion under Sembiring and Salta v. INS, 314 F.3d 1076 (9th Cir. 2002).
PETITION FOR REVIEW GRANTED in part; DENIED in part; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Reference
- Full Case Name
- MEI CAO v. Michael B. MUKASEY, Attorney General
- Status
- Published