Bi Yen Wang v. Mukasey

MEMORANDUM **

Bi Yen Wang, a native and citizen of China, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing her appeal from an immigration judge’s (“IJ”) decision denying her motion to reopen proceedings in which she was ordered removed in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252 . Reviewing for abuse of discretion, Lo v. Ashcroft, 341 F.3d 934, 937 (9th Cir.2003), we grant the petition and remand for further proceedings.

The BIA abused its discretion in deciding that Wang failed to overcome the presumption of effective service. Wang’s motion to reopen included a sworn declaration that she never received the notice of hearing. See Sembiring v. Gonzales, 499 F.3d 981, 986 (9th Cir.2007) (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). Additionally, the record copy of the mailing envelope, upon which the agency relies for evidence of effective service, contains no name or address. See id. at 989 (“[T]he envelope used to send the notice ... bears no indication…