                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 21 2011

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




                             FOR THE NINTH CIRCUIT



JOSE GUADALUPE PEREZ-CASTRO,                     No. 09-74084

               Petitioner,                       Agency No. A095-724-957

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

               Respondent.



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

                             Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       Jose Guadalupe Perez-Castro, a native and citizen of Mexico, petitions pro

se for review of the Board of Immigration Appeals’ order dismissing his appeal

from an immigration judge’s 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).
We review for abuse of discretion the denial of a motion to reopen. Sembiring v.

Gonzales, 499 F.3d 981, 985 (9th Cir. 2007). We grant the petition for review and

remand for further proceedings.

      The agency abused its discretion by denying Perez-Castro’s motion to

reopen where he submitted a sworn affidavit from his counsel attesting to non-

receipt of the notice rescheduling his hearing, had a consistent record of appearing

for prior proceedings, attempted to attend his hearing on its originally scheduled

date, and promptly moved to reopen his proceedings after learning he had been

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

applicable to hearing notices sent by regular mail may be rebutted by a sworn

affidavit and any relevant circumstantial evidence of non-receipt).

      In light of our disposition, we need not address Perez-Castro’s remaining

contentions.

      PETITION FOR REVIEW GRANTED; REMANDED.




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