Martinez

MEMORANDUM *

Benito Sandoval Martinez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of an immigration judge’s (“IJ”) order denying his motion to reopen proceedings in which he was ordered removed in absentia. We have jurisdiction under 8 U.S.C. § 1252 . We review for abuse of discretion. See Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002). We grant the petition for review and remand.

Sandoval Martinez’s motion to reopen included a declaration under penalty of perjury that he never received the notice to appear (“NTA”). See id. at 1079 (discussing weaker presumption of delivery of hearing notice sent through regular mail, and noting that a sworn affidavit verifying non-receipt of the notice may be sufficient to rebut the presumption of delivery). The IJ erred in discrediting, without a hearing, portions of this declaration that he found to be incredible. See Ghadessi v. INS, 797 F.2d 804, 806 (9th Cir.1986) (“As motions to reopen are decided without a factual hearing, the Board is unable to make credibility determinations at this stage of the proceedings.”); see also Salta, 314 F.3d at 1079 (remanding to the…