German Yovany Ventura Canales v. ERIC H. HOLDER, 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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERMAN YOVANY VENTURA
CANALES,
Petitioner,
v.
ERIC H. HOLDER, Attorney General,
Respondent.
No. 07-72411
Agency No. A070-927-942
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2010**
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
German Yovany Ventura Canales, a native and citizen of Honduras,
petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s (“IJ”) order denying his motion
to reopen deportation proceedings conducted in absentia. Our jurisdiction is
FILED
OCT 01 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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07-72411 2
governed by 8 U.S.C. § 1252. We review de novo questions of law, Chaidez v.
Gonzales, 486 F.3d 1079, 1082 (9th Cir. 2007), and for abuse of discretion the
denial of motions to reopen, Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002).
We grant in part and dismiss in part the petition for review.
The IJ abused his discretion by applying to Ventura Canales’ Order to Show
Cause a presumption of proper delivery that applies only to notices of hearing. See
Chaidez, 486 F.3d at 1085. We remand for the BIA to apply the proper legal
standard when determining whether the government met its burden of establishing
proper service. See generally INS v. Ventura, 537 U.S. 12, 16-17 (2002) (per
curiam); see also Chaidez, 486 F.3d at 1087.
We lack jurisdiction to review the BIA’s decision not to invoke its sua
sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a). See Ekimian v.
INS, 303 F.3d 1153, 1159 (9th Cir. 2002).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW GRANTED in part; DISMISSED in part;
and REMANDED.

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