                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 08 2011

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




                             FOR THE NINTH CIRCUIT



ALVARO PULIDO,                                   No. 08-72486

               Petitioner,                       Agency No. A070-784-076

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

               Respondent.



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

                              Sumitted May 24, 2011 **

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

       Alvaro Pulido, a native and citizen of Mexico, petitions 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 held in

absentia. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for abuse of


          *
             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).
discretion, Salta v. INS, 314 F.3d 1076, 1078 (9th Cir. 2002), we grant the petition

for review.

      The agency abused its discretion in denying Pulido’s motion to reopen

where he rebutted the presumption of effective service by submitting sworn

declarations explaining why he and his wife had not received the Notice to Appear

(“NTA”), and the record did not contain proof of attempted delivery to Pulido’s

address. See 8 U.S.C. § 1229(c) (service of NTA by mail is sufficient if there is

proof of attempted delivery to alien’s last address); Arrieta v. INS, 117 F.3d 429,

432 (9th Cir. 1997) (letter by petitioner is substantial and probative evidence that

may rebut presumption of effective service).

      PETITION FOR REVIEW GRANTED; REMANDED.




                                           2                                    08-72486
