                                                                           FILED
                               NOT FOR PUBLICATION                            JUN 23 2010

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




                               FOR THE NINTH CIRCUIT



JINAN XU,                                        No. 05-71448

              Petitioner,                        Agency Nos. A095-178-121
                                                            A095-178-122
  v.

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

              Respondent.



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

                            Argued and Submitted May 5, 2010
                                   Pasadena, California

Before: B. FLETCHER and PAEZ, Circuit Judges, and EZRA, ** District Judge.

       Petitioner Jinan Xu petitions for review of an order by the Board of

Immigration Appeals (BIA) affirming the denial by the Immigration Judge (IJ) of

Xu’s motion to reconsider the IJ’s denial of Xu’s motion to reopen her asylum


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.


        **
             The Honorable David Alan Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
application. We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition

and remand.

      Xu filed an application for asylum and for withholding of removal with the

Immigration and Naturalization Service (INS). The INS charged Xu with being

subject to removal under 8 U.S.C. § 1227(a)(1)(B), and she was personally served

with notice that her removal hearing was scheduled for November 25, 2003. The

court rescheduled the hearing to November 18, 2003, and purportedly sent notice

of the change to both Xu and her counsel via regular mail, but Xu disputes ever

receiving such notification. Xu’s counsel contends that he received information

from the court’s telephone database that the hearing had been changed to

November 18, but upon calling the court, counsel was informed by the clerk that

“the next hearing for an individual” was November 25, 2003. Neither Xu nor her

attorney appeared at the November 18, 2003 hearing.

      When Xu and her counsel failed to appear at the November 18, 2003,

hearing, the IJ issued an in absentia order of removal pursuant to 8 U.S.C. §

1229a(b)(5). On November 26, 2003, Xu timely filed a motion to reopen, and she

submitted an affidavit attesting that (1) she had not received notice of the

November 18, 2003 rescheduled hearing; (2) she had not changed her mailing

address but nevertheless did not receive the notice; and (3) her attorney had been


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informed by a clerk of the court that the hearing “for an individual” was on

November 25, 2003.

      The IJ denied Xu’s motion to reopen and found that Xu had proper notice of

the rescheduled date pursuant to 8 U.S.C. § 1229(a)(2)(A), because the record of

proceeding contained two copies of notices sent to both Xu and her attorney that

stated her removal hearing had been rescheduled. Xu filed a motion to reconsider,

which the IJ also denied. Xu timely appealed the IJ’s denial of her motion to

reconsider and the BIA summarily affirmed the IJ’s decision.

      The IJ erred in holding that Xu’s motion to reconsider failed to specify any

errors in the IJ’s earlier denial of her motion to reopen. Xu cited Salta v. INS, 314

F.3d 1076, 1079-80 (9th Cir. 2002), in arguing that the IJ committed an error of

law when she denied Xu’s motion to reopen. Under the standard set forth in Salta,

when a petitioner initiates a proceeding to obtain a benefit, appears at earlier

hearings, and has no motive to avoid a hearing, a sworn affidavit that she did not

receive a notice that was sent through the regular mail is sufficient to rebut the

presumption of delivery. Id. at 1079; see also Sembiring v. Gonzales, 499 F.3d

981, 988-91 (9th Cir. 2007). Here, the IJ failed to apply the correct standard when

she denied Xu’s motion to reopen and failed to recognize her legal error when she

denied Xu’s motion to reconsider.


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      Xu’s statement in her affidavit that she did not receive notice of the

rescheduled hearing date was uncontested. Furthermore, Xu initiated the

proceeding when she filed an application for asylum and withholding of removal,

met all other deadlines, and had no motive to miss the hearing. Accordingly, Xu

rebutted the presumption that she received notice of the new hearing date. We

therefore grant the petition and remand to the BIA with directions to (1) grant Xu’s

motion to reconsider and (2) remand to the IJ with directions to grant the motion to

reopen, rescind the in abstentia removal order, and address the merits of Xu’s

application for asylum and withholding of removal.

      PETITION GRANTED; REMANDED WITH INSTRUCTIONS.




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