Duran-Madriles

MEMORANDUM **

Rosa Duran-Madriles was ordered removed in absentia on August 29, 2002. On October 3, 2002, Duran-Madriles filed a motion to reopen with supporting documents, claiming that she did not receive a Notice to Appear at the removal hearing. An immigration judge denied the motion to reopen without holding a hearing, and the Board of Immigration Appeals affirmed without opinion. We grant the petition for review and remand for further consideration.

The facts are known to the parties and are not recounted here.

We review the denial of a motion to reopen for abuse of discretion. Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002). “Because the BIA affirmed without opinion, this court directly reviews the immigration judge’s decision as though it were the decision of the BIA.” Chete Juarez v. Ashcroft, 376 F.3d 944, 947 (9th Cir.2004).

An in absentia removal order may be rescinded if the alien demonstrates “that she did not receive notice of the removal hearing.” Salta, 314 F.3d at 1078 (citing 8 U.S.C. § 1229a(b)(5)(C)). Where, as here, the agency serves a Notice to Appear by regular mail, the agency is not entitled to the “strong presumption” of delivery that arises when it…