NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE LUCIO MOSCOSO-ALVARADO, No. 18-72887 Petitioner, Agency No. A078-317-723 v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 10, 2021** San Francisco, California Before: HURWITZ and BRESS, Circuit Judges, and CORKER,*** District Judge. Jose Moscoso-Alvarado, a citizen and native of Guatemala, was charged with removability for overstaying a visitor visa. At a 2002 bond hearing, he stated he * 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). *** The Honorable Clifton L. Corker, United States District Judge for the Eastern District of Tennessee, sitting by designation. would live and receive mail at his brother’s home in California while awaiting a removal hearing. The immigration court mailed two notices of the time and place of the hearing to that address, but Moscoso failed to appear and was ordered removed in absentia. Moscoso moved to reopen proceedings in 2017, claiming he had not received notice of his removal order until 2011. An Immigration Judge denied relief, and the Board of Immigration Appeals (“BIA”) dismissed an appeal. Reviewing for abuse of discretion, see Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014), we deny the petition for review in part and dismiss it in part for lack of jurisdiction. 1. A hearing notice is presumed received when “properly directed” to the alien’s last provided address. See Busquets-Ivars v. Ashcroft, 333 F.3d 1008, 1010 (9th Cir. 2003) (quoting Rosenthal v. Walker, 111 U.S. 185, 193 (1884)); Matter of M-R-A-, 24 I. & N. Dec. 665, 673 (BIA 2008). Although “delivery by regular mail does not raise the same ‘strong presumption’ as certified mail,” the burden remains on the alien to rebut the presumption of receipt. Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002). Moscoso admitted that he resided at his brother’s home for only “a few days,” but averred that his brother “always” informed him when mail arrived, and that no immigration court mailings had arrived. The BIA did not abuse its discretion in finding that this bare allegation was insufficient to rebut the presumption of receipt. Moscoso’s other attempts to defeat the presumption are also unavailing. First, 2 he claims the record is missing an “Exhibit 4,” allegedly demonstrating improper handing within the agency; but the document is located at page 210 of the Administrative Record. Second, he argues the immigration court staff should not have used a stamp to “sign” the notice, but he points to no Ninth Circuit precedent requiring a handwritten signature on an otherwise properly directed notice. See Busquets-Ivars, 333 F.3d at 1010 (requiring a correct address, sufficient postage, and deposit in the mail). Third, Moscoso ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals