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

Fonseca-Vidaurre v. Holder

U.S. Court of Appeals for the Ninth Circuit · Decided March 25, 2010 · Schroeder, Pregerson, Rawlinson

371 F. App'x 865

Counsel

David Paz Soldán, Esquire, Law Office of David Paz-Soldan, Los Angeles, CA, for Petitioner., Jesse Matthew Bless, Ana T. Zablah-Monroe, Esquire, David V. Bernal, Assistant Director, U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, District Counsel, Esquire, Office of the District Counsel, Department of Homeland Security, Los Angeles, CA, Ronald E. Lefevre, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, for Respondent.

Opinion

MEMORANDUM **

Juan Miguel Fonseca-Vidaurre, a native and citizen of Peru, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen and reissue the BIA’s prior order. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and review de novo claims of due process violations, Can o-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002), and we deny the petition for review.

The BIA did not abuse its discretion or violate due process in denying Fonseca-Vidaurre’s motion to reissue, where it considered his evidence of non-receipt and properly concluded that it was insufficient to rebut the presumption of proper mailing. See Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir. 2007) (BIA fulfills its statutory duty of service if a decision was properly mailed); see also Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim).

PETITION FOR REVIEW DENIED.

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

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