FILED NOT FOR PUBLICATION MAY 10 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ANTONIO PATIO SICAT, No. 16-73690 Petitioner, Agency No. A076-686-405 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 14, 2018 San Francisco, California Before: BERZON and BEA, Circuit Judges, and BERG,** District Judge. Antonio Sicat, a 50-year-old native and citizen of the Philippines, was ordered removed in absentia by an immigration judge (IJ) in March 2016. The IJ denied Sicat’s motion to reopen his removal proceedings and to rescind the order * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Terrence Berg, United States District Judge for the Eastern District of Michigan, sitting by designation. of removal, and the Board of Immigration Appeals (BIA) affirmed. We hold the BIA and IJ abused their discretion in denying Sicat’s motion,1 GRANT the petition for review, and REMAND with instructions for the IJ to hold an evidentiary hearing on the motion to reopen. 1. Sicat moved to reopen his removal proceedings on the ground that he never received notice of the hearing. See 8 U.S.C. § 1229a(b)(5)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(ii). When the immigration court sends a hearing notice by regular mail, there is only a “slight” or “weak[]” presumption that the notice was delivered to the recipient. See Sembiring v. Gonzales, 499 F.3d 981, 987 (9th Cir. 2007); Matter of M-R-A-, 24 I. & N. Dec. 665, 673 (BIA 2008). “Where a petitioner actually initiates a proceeding to obtain a benefit, appears at an earlier hearing, and has no motive to avoid the hearing, a sworn affidavit . . . that neither she nor a responsible party residing at her address received the notice should ordinarily be sufficient to rebut the presumption of delivery . . . .” Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002). In making that determination, the IJ may consider, among other things, the affidavits of the petitioner and her family members; a petitioner’s prior applications and current 1 We review the decisions of both the BIA and IJ when the BIA relies in part on the IJ’s reasoning. Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016). 2 statutory eligibility for relief, which may be evidence of her motive to appear at (or avoid) a hearing; and a petitioner’s “previous attendance at Immigration Court hearings.” Matter of M-R-A-, 24 I. & N. Dec. at 674. Sicat submitted affidavits from himself, his wife, and his adult daughter that no one at his address received a hearing notice from the immigration court. Sicat had previously pursued, intended to pursue further, and actually did pursue further, adjustment of status based on his marriage to a United States citizen, though at the time of his hearing he lacked the approved family visa petition ...
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