NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 4 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ARGENTINA BERNAL-LOPEZ, No. 21-55 Agency No. Petitioner, A203-522-401 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 20, 2023** Phoenix, Arizona Before: TALLMAN, OWENS, and BADE, Circuit Judges. Argentina Bernal-Lopez appeals a decision of the Board of Immigration Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) denial of her motion to reopen. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. The BIA affirmed the IJ’s decision without an opinion, so we review the * 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). IJ’s decision as the final agency action. See 8 C.F.R. § 1003.1(e)(4); Zehatye v. Gonzales, 453 F.3d 1182, 1184 (9th Cir. 2006). We review the agency’s denial of a motion to reopen for an abuse of discretion. Chandra v. Holder, 751 F.3d 1034, 1036 (9th Cir. 2014). The agency abused its discretion by denying Bernal-Lopez’s motion to reopen based on lack of notice.1 See 8 U.S.C. § 1229a(b)(5)(C)(ii). The agency’s decision is contrary to Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), which provided the basis of its decision. Although Bernal-Lopez’s father misrepresented her age as seventeen to the IJ, unlike the minor petitioner in Flores-Chavez, the notice of hearing was never provided to Bernal-Lopez. See id. at 1153 (holding that “the regulations at issue require[] that the agency serve notice both to the ‘juvenile,’ . . . and to the person to whom the regulation authorizes release”). Bernal-Lopez, who was not represented by counsel, was not personally served with notice of hearing and notice was not mailed to her last address. See Perez-Portillo v. Garland, 56 F.4th 788, 792 (9th Cir. 2022) (discussing notice requirements); see also 8 U.S.C. §§ 1229(a)(2)(A), (c). Thus, the presumption of regular service which applies in some circumstances does not apply here. 1 The agency did not abuse its discretion by denying the motion despite the government’s non-opposition to the motion. This case is distinguishable from the narrow holding in Matter of Yewondwosen, 21 I. & N. Dec. 1025, 1026–27 (BIA 1997). . 2 See B.R. v. Garland, 26 F.4th 827, 836 (9th Cir. 2022); Mejia–Hernandez v. Holder, 633 F.3d 818, 822 (9th Cir. 2011) (discussing presumptions applicable to service by certified and regular mail). Additionally, Bernal-Lopez’s declaration provided sufficient evidence of non-delivery of the notice of hearing, and the agency abused its discretion by discrediting it. See Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005) (“[F]acts presented in affidavits supporting a motion to reopen must be accepted as true unless inherently unbelievable.”). The circumstances of this case, however, do not warrant granting the petition and …
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