                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 09 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



KYRIA MELGAR,                                    No. 09-73200

               Petitioner,                       Agency No. A095-023-229

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       Kyria Melgar, a native and citizen of Costa Rica, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an

immigration judge’s decision denying her motion to reopen removal proceedings

conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. Reviewing


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
for abuse of discretion, Lo v. Ashcroft, 341 F.3d 934, 937 (9th Cir. 2003), we grant

the petition for review and remand for further proceedings.

      The BIA abused its discretion in concluding that Melgar failed to overcome

the presumption of delivery where she presented a sworn declaration that she did

not receive the hearing notice, see Sembiring v. Gonzales, 499 F.3d 981, 986 (9th

Cir. 2007) (discussing the weaker presumption of delivery of a hearing notice sent

through regular mail), and the “proof of attempted delivery” is a record copy of a

mailing envelope containing no name or address, see id. at 989. Moreover, the

BIA failed to take into account that Melgar had affirmatively applied for relief and

moved to reopen her case within weeks of being ordered removed in absentia. See

id. at 988 (“The test for whether an alien has produced sufficient evidence to

overcome the presumption of effective service by regular mail is practical and

commonsensical rather than rigidly formulaic.”); see also Matter of M-R-A-, 24

I&N Dec. 665, 674 (BIA 2008) (listing affirmative relief applications and diligence

among the factors for consideration in determining whether an alien has rebutted

the weaker presumption of delivery).

      In light of our disposition, we need not address Melgar’s remaining

contention.

      PETITION FOR REVIEW GRANTED; REMANDED.


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