                                                                           FILED
                              NOT FOR PUBLICATION                           JAN 04 2010

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




                              FOR THE NINTH CIRCUIT



 MIRIAM LOERA AQUINO,                            No. 07-70284

               Petitioner,                       Agency No. A095-500-710

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

               Respondent.



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

                             Submitted December 15, 2009 *

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

        Miriam Loera Aquino, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ order summarily affirming an immigration

judge’s (“IJ”) decision denying her motion to reopen removal proceedings



          *
             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).

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

for abuse of discretion, Salta v. INS, 314 F.3d 1076, 1078 (9th Cir. 2002), we grant

the petition for review and remand for further proceedings.

       The IJ denied Loera Aquino’s motion to reopen based on failure to receive

the hearing notice primarily because she had not initiated removal proceedings and

had not appeared at any previous hearings. See Salta, 314 F.3d at 1079. The IJ

therefore found that her sworn declaration did not suffice to overcome the

presumption of effective service of her hearing notice. At the time of its decision,

the agency did not have the benefit of our decision in Sembiring v. Gonzales, 499

F.3d 981, 988-90 (9th Cir. 2007) (holding that alien’s statement overcame

presumption of effective service where no prior hearings scheduled, and alien had

no motivation to avoid hearing). We therefore remand for reconsideration of Loera

Aquino’s motion to reopen.

       The government shall bear the costs for this petition for review.

       PETITION FOR REVIEW GRANTED; REMANDED.




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