                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 06 2012

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




                             FOR THE NINTH CIRCUIT



ALEJANDRO OCHOA-VARONA,                          No. 09-70740

               Petitioner,                       Agency No. A070-953-762

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

               Respondent.



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

                             Submitted June 26, 2012 **

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       Alejandro Ochoa-Varona, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) decision denying his motion to reopen removal

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


          *
             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).
Reviewing for abuse of discretion, Sembiring v. Gonzales, 499 F.3d 981, 985 (9th

Cir. 2007), we grant the petition for review and remand for further proceedings.

       The BIA abused its discretion in concluding that Ochoa-Varona failed to

overcome the presumption of delivery of his hearing notice where he presented a

sworn affidavit that he did not receive the hearing notice, the record contains only

weak evidence that the notice was actually mailed, and Ochoa-Varona had

affirmatively applied for relief and promptly moved to reopen his case after being

ordered removed in absentia. See id. at 988-89 (the weaker presumption of service

for notices sent by regular mail may be rebutted by a sworn affidavit and any

relevant circumstantial evidence of non-receipt). The BIA abused its discretion in

weighing as an adverse factor that Ochoa-Varona had not attended an earlier

hearing, where “no previous [removal] proceedings had taken place.” See id. at

989.

       We therefore grant the petition for review and remand to the BIA with

directions to remand to the IJ to grant Ochoa-Varona’s motion to reopen and

rescind his in absentia removal order. See id. at 991.

       PETITION FOR REVIEW GRANTED; REMANDED.




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