Tiejun Wu 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).
/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIEJUN WU,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 05-76742
Agency No. A095-192-639
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.
Tiejun Wu, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration
judge’s (“IJ”) decision denying his motion to reopen removal proceedings
FILED
DEC 28 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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/Research 05-76742 2
conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We grant the
petition for review and remand.
The BIA concluded that Wu failed to rebut the presumption that notice of
the scheduled January 6, 2005, hearing was properly delivered because it did not
appear that Wu had initiated proceedings to seek relief, and because Wu’s sworn
statement of non-receipt lacked sufficient detail. The record reflects that Wu
applied for asylum relief before the agency commenced removal proceedings,
appeared at two hearings, and successfully appealed to the BIA before failing to
appear at his hearing on remand. At the time of its decision, the BIA did not have
the benefit of our decision in Sembiring v. Gonzales, 499 F.3d 981, 988-90 (9th
Cir. 2007) (adopting a “practical and commonsensical” test to determine whether
the evidence rebuts the weaker presumption of service applicable to delivery via
regular mail, and holding that claim of personal non-receipt was sufficient where
alien initiated proceedings and appeared on previously scheduled hearing date).
We therefore remand for reconsideration of Wu’s motion to reopen in light of
Sembiring.
PETITION FOR REVIEW GRANTED; REMANDED.

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