Juan Jaime Franco v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JUAN MANUEL JAIME FRANCO, No. 15-71484 Petitioner, Agency No. A076-378-250 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 April 12, 2018 Pasadena, California Before: SCHROEDER and M. SMITH, Circuit Judges, and CHEN,** District Judge. Petitioner was ordered removed in absentia. His motion to reopen, asserting he did not receive notice of the hearing, was denied by the Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”). We grant the petition for review and remand for an evidentiary hearing. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward M. Chen, United States District Judge for the Northern District of California, sitting by designation. In September 1997, an asylum application was filed for Franco. According to Franco’s declaration, the application was filed without Franco’s knowledge or permission by a notary named Edward Lopez. Franco mistakenly believed that Lopez was an attorney who could help him obtain a work permit. Franco asserts the Los Angeles address on the application was actually Lopez’s business address, not Franco’s residence. He now concedes (after declaring to the contrary) that he signed the application, though he claims he did not know he was signing an asylum application. In January 1998, legacy INS sent Franco a Notice to Appear (“NTA”) by certified mail, ordering him to appear before an IJ in March 1998. The return receipt shows that the NTA was delivered to the Los Angeles address. The recipient’s name is not noted on the receipt, and the recipient’s signature is not Franco’s. Franco states that he did not receive the NTA and that Lopez never informed him of the NTA. Franco did not appear for his hearing. He was ordered removed in absentia. He was arrested and removed in November 1998. In January 2014, Franco moved to reopen and rescind the removal order based on lack of notice. The IJ denied the motion, and the BIA affirmed. The BIA’s decision was based on the following: (1) Franco failed to show that he did not receive the NTA, and the IJ reasonably doubted the veracity of Franco’s declaration stating otherwise; (2) Franco could be charged with receipt of the NTA, 2 15-71484 because it was sent to the Los Angeles address listed on the asylum application and the mail was signed as received; (3) Franco failed to rebut certified mail’s presumption of proper service, because he presented no evidence that delivery was improper or not attempted; and (4) to the extent the motion was based on exceptional circumstances, it was untimely. Franco timely appealed. 1. As to actual notice, we review the IJ’s reasoning which was adopted by the BIA. See Siong v. INS, 376 F.3d 1030, 1036 (9th Cir. 2004). ...

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