Dolores Esteban-Manuel v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 3 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DOLORES CANDELARIA ESTEBAN- No. 15-73252 MANUEL and JUAN ESTEBAN- MANUEL, Agency Nos. A206-462-884 A206-462-885 Petitioners, v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 23, 2017** Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges. Dolores Candelaria Esteban-Manuel and Juan Esteban-Manuel, natives and citizens of Guatemala, petition for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge’s decision denying their * 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). motion to reopen removal proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Sembiring v. Gonzales, 499 F.3d 981, 985 (9th Cir. 2007). We grant the petition for review and remand. The agency abused its discretion in denying petitioners’ motion to reopen where it relied on conjecture in petitioner’s affidavit regarding the possible discarding of mail, and did not consider all of the evidence that petitioners offered to rebut the presumption of delivery. See id. at 986-88 (describing evidence relevant to overcome presumption of effective service by regular mail); Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002) (“delivery by regular mail does not raise the same ‘strong presumption’ [of delivery] as certified mail, and less should be required to rebut such a presumption.”). On remand, the BIA should consider as part of its notice analysis petitioners’ compliance with an Immigration and Customs Enforcement check-in order both before and after the in absentia removal order was entered. See Sembiring, 499 F.3d at 989 (lack of motive to avoid immigration proceedings is a factor to be considered). PETITION FOR REVIEW GRANTED; REMANDED. 2 15-73252 15-73252 Court of Appeals for the Ninth Circuit ca9 9th Cir. Dolores Esteban-Manuel v. Jefferson Sessions 3 November 2017 Agency Unpublished 6f34a66b4bc642b092b4c9ea988cb0aa7327bf88

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