Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Philippe Dwelshauvers, Fresno, CA, for Petitioner.
Regional Counsel, Western Region Immigration & Naturalization Service, Laguna Niguel, CA, Oil, 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. A29-320-846.
Before: CANBY, BEEZER, and KOZINSKI, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Jose Israel Villatoro-Blanco, a native and citizen of El Salavador, petitions for review of the Board of Immigration Appeals's ("BIA") order summarily affirming an immigration judge's ("IJ") order denying Villatoro-Blanco's motion to reconsider the IJ's denial of Villatoro's motion to reopen proceedings in which he was deported in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review the IJ's decision as the final agency order. Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). We review for abuse of discretion the denial of a motion to reconsider. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). We grant the petition for review and remand with instructions.
Villatoro-Blanco contends that he did not receive notice of his deportation hearing, which the government contends was sent by regular mail. He filed a motion to reopen and the IJ denied the motion without considering Villatoro-Blanco's evidence to rebut the presumption of delivery for service by regular mail. See Salta v. INS, 314 F.3d 1076, 1079 (9th Cir.2002) (requiring a sworn affidavit that notice was not received). Because Villatoro-Blanco had no motive to avoid his deportation hearing, and he provided a sworn affidavit stating he did not receive a notice of hearing, he might be able to rebut the presumption of delivery. Id.
In light of Salta, we remand to the BIA with instructions to remand to the IJ for an evidentiary hearing to determine whether Villatoro-Blanco has rebutted the presumption that he received notice of his hearing.
PETITION FOR REVIEW GRANTED; REMANDED with instructions.