Rivera Montes v. Gonzales

MEMORANDUM ***

Veronica Rivera Montes, a native and citizen of Mexico, petitions pro se for review of an order of the Board of Immigration Appeals (“BIA”) summarily affirming an immigration judge’s (“IJ”) order denying her motion to reopen removal proceedings after she was ordered removed 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 reopen. Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002). We grant the petition and remand with instructions.

Rivera Montes contends that she did not receive notice of her removal hearing, which was sent by regular mail. She filed her motion to reopen, and the IJ denied the motion, before our decision in Salta established the quantum of evidence required to rebut the presumption of delivery for service by regular mail. See id. at *196 1079 (requiring a sworn affidavit that notice was not received). Accordingly, the IJ abused his discretion by applying the evidentiary requirements for notice by certified mail in denying Rivera Montes’ motion to reopen. See…