                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             OCT 17 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

LUIS FRANCISCO SOLORZANO-                        No. 08-71396
MATEO,
                                                 Agency No. A095-657-042
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted October 10, 2012
                              Pasadena, California

Before: FERNANDEZ and BERZON, Circuit Judges, and HERNANDEZ, District
Judge.**

       Luis Francisco Solorzano-Mateo (“Solorzano”), a native and citizen of

Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”)

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Marco A. Hernandez, District Judge for the U.S.
District Court for Oregon, sitting by designation.
order dismissing his appeal from an immigration judge’s (“IJ”) decision denying

his motion to reopen removal proceedings conducted in absentia. We review the

BIA’s denial of a motion to reopen for abuse of discretion, He v. Gonzales, 501

F.3d 1128, 1130 (9th Cir. 2007), and we grant the petition for review.

      Solorzano filed a motion to reopen his in absentia removal proceedings,

stating that there “[wa]s no indication that [the] notice of hearing was ever mailed”

to him in the first place. He included with his motion a signed declaration stating

that he never received the NOH. The IJ denied Solorzano’s motion to reopen,

finding that the “[immigration] [c]ourt sent th[e] notice” by regular mail to

Solorzano’s provided address, and that therefore “effective delivery” could be

presumed. The BIA agreed and dismissed Solorzano’s appeal of the IJ’s decision,

stating that “the record reflects that the Notice of Hearing [] was sent to

[Solorzano] by regular mail [] to the address he provided.” Thus, the BIA

squarely addressed this issue. The exhaustion of administrative remedies

requirement was therefore met. See Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 874

(9th Cir. 2008).

      Section 240(b)(5)(A) of the Immigration and Naturalization Act (INA)

provides:




                                           2
      Any alien who, after written notice required under paragraph (1) or (2)
      of section 1229(a) of this title has been provided to the alien or the
      alien’s counsel of record, does not attend a proceeding under this
      section, shall be ordered removed in absentia if the Service establishes
      by clear, unequivocal, and convincing evidence that the written notice
      was so provided and that the alien is removable (as defined in
      subsection (e)(2) of this section). The written notice by the Attorney
      General shall be considered sufficient for purposes of this
      subparagraph if provided at the most recent address provided . . . .

8 U.S.C. §§ 1229a(b)(5)(A) (emphasis added); see also § 1229(c) (“Service by

mail . . . shall be sufficient if there is proof of attempted delivery to the last address

provided by the alien.”) (emphasis added). Here, there is almost no evidence in the

record to support the BIA’s conclusion that the immigration court mailed

Solorzano’s NOH to him at this last provided address.

      Other than the date stamp, the Certificate of Service is largely inscrutable.

At most, the “(M)” indicating service by mail may have been partially circled.

Though there is a small mark outside of the checkbox indicating service to

“ALIEN c/o Custodial Officer,” it may have been simply a stray mark, and

Solorzano was not in custody at the time the NOH issued; the form therefore

indicates either an improper addressee or no addressee. The faint markings near

the “Court Staff” line give no indication as to who (if anyone) attempted to send

the notice. In short, the markings on the Certificate do not provide “clear,

unequivocal and convincing evidence” that the NOH was mailed.


                                            3
      Nor does the fact that Solorzano’s correct address was included on the front

of the NOH establish that the document was, in fact, sent to him. At most,

including Solorzano’s address suggests that the immigration court might have used

the same address had it mailed the notice. But without any other evidence to

suggest the immigration court did so, the government has not met its burden of

proof with regard to its heightened notice obligation.

      The BIA has explained that “[w]here a . . . Notice of Hearing is properly

addressed and sent by regular mail according to normal office procedures, there is

a presumption of delivery.” Matter of M-R-A, 24 I. & N. Dec. 66, 2008 WL

4763228 (BIA 2008) (emphasis added). Once again, however, the record lacks any

evidence to suggest that Solorzano’s NOH was sent according to normal office

procedures, or even what normal office procedures were.

      Finally, Solorzano’s declaration attesting to non-receipt provided some

evidence that the NOH was not mailed, see Sembiring v. Gonzales, 499 F.3d 981,

988 (9th Cir. 2007), further undermining the adequacy of the scant evidence of

mailing.

      Accordingly, the BIA abused its discretion when it found the evidence

sufficient to establish proper mailing of Solorzano’s NOH and dismissed his

appeal.


                                          4
PETITION FOR REVIEW GRANTED; REMANDED.




                       5
