Opinion
No. 04-72715.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed May 28, 2008.
R. Wayne McMillan, Esq., McMillan Tkach, LLP, Pasadena, CA, for Petitioner.
Regional Counsel, Western Region Immigration Naturalization Service, Laguna Niguel, CA, Ronald E. Lefevre, Chief Legal Officer, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Emily A. Radford, Esq., Keith I. Bernstein, DOJ — U.S. Department of Justice, Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-724-487.
Before: PREGERSON, TASHIMA, and GOULD, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Toe Myint Tun, a native and citizen of Burma (Myanmar), petitions for review of the Board of Immigration Appeals' ("BIA") order denying his motion to reopen proceedings to reissue its decision dismissing his appeal from an immigration judge's denial of his application for asylum and withholding of removal. Reviewing for abuse of discretion, Lam-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004), amended by 404 F.3d 1105 (9th Cir. 2005), we grant the petition and remand for further proceedings.
he BIA abused its discretion by failing to address the affidavit and supporting evidence Tun submitted to show he did not receive the BIA's January 5, 2004 order. See Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir. 2007) (presumption of proper mailing created by transmittal cover letter may be overcome by evidence of non-receipt by a petitioner or counsel). We remand for the BIA to review the evidence in the first instance and to determine whether it is sufficient to overcome the presumption of mailing.