U.S. Court of Appeals for the Ninth Circuit, 2010

Fernandez-Miranda v. Holder

Fernandez-Miranda v. Holder
U.S. Court of Appeals for the Ninth Circuit · Decided June 9, 2010 · Canby, Thomas, Fletcher
382 F. App'x 655

Fernandez-Miranda v. Holder

Opinion

MEMORANDUM **

Javier Fernandez-Miranda, Maria Virginia Guevara-Gabriel, and their daughter, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reissue. We have jurisdiction un *656 der 8 U.S.C. § 1252. Reviewing for abuse of discretion, Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008), we grant the petition for review.

The BIA abused its discretion by failing to specifically address Fernandez-Miranda’s sworn statement that petitioners did not receive notice of the BIA’s December 21, 2007, order. See Singh v. Gonzales, 494 F.3d 1170, 1172-73 (9th Cir. 2007) (presumption of proper mailing may be overcome by evidence of non-receipt by petitioner or counsel). We remand for the BIA to address the evidence of non-receipt in the first instance and determine whether it is sufficient to overcome the presumption of mailing. See id.

PETITION FOR REVIEW GRANTED; REMANDED

**

This disposition is not appropriate for publication and is not precedent except as provid *656 ed by 9th Cir. R. 36-3.

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