Miriam Loera Aquino v. ERIC H. HOLDER Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NHY/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIRIAM LOERA AQUINO,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-70284
Agency No. A095-500-710
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 15, 2009*
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Miriam Loera Aquino, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ order summarily affirming an immigration
judge’s (“IJ”) decision denying her motion to reopen removal proceedings
FILED
JAN 04 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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NHY/Research 07-70284 2
conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. Reviewing
for abuse of discretion, Salta v. INS, 314 F.3d 1076, 1078 (9th Cir. 2002), we grant
the petition for review and remand for further proceedings.
The IJ denied Loera Aquino’s motion to reopen based on failure to receive
the hearing notice primarily because she had not initiated removal proceedings and
had not appeared at any previous hearings. See Salta, 314 F.3d at 1079. The IJ
therefore found that her sworn declaration did not suffice to overcome the
presumption of effective service of her hearing notice. At the time of its decision,
the agency did not have the benefit of our decision in Sembiring v. Gonzales, 499
F.3d 981, 988-90 (9th Cir. 2007) (holding that alien’s statement overcame
presumption of effective service where no prior hearings scheduled, and alien had
no motivation to avoid hearing). We therefore remand for reconsideration of Loera
Aquino’s motion to reopen.
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW GRANTED; REMANDED.

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