                                                                          FILED
                             NOT FOR PUBLICATION                           JUN 28 2011

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




                             FOR THE NINTH CIRCUIT



JAIME SANDOVAL,                                  No. 10-71721

               Petitioner,                       Agency No. A076-381-879

  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.

       Jaime Sandoval, 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 proceedings held

in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review 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 the denial of a motion to reopen, Celis-Castellano v. Ashcroft, 298 F.3d

888, 890 (9th Cir. 2002), and we review de novo claims of due process violations,

Hernandez v. Mukasey, 524 F.3d 1014, 1017 (9th Cir. 2008). We grant the petition

for review.

      The agency abused its discretion by applying a “strong presumption of

effective service” where the record lacks proof of an “attempted delivery and

notification of certified mail.” Arrieta v. INS, 117 F.3d 429, 431 (9th Cir. 1997).

      The agency also abused its discretion in denying Sandoval’s motion on the

ground that Sandoval provided no evidence to corroborate his affidavit alleging

non-receipt, where the motion included a corroborating letter from Sandoval’s

former employer. See id. at 432 (“when an alien is seeking to reopen deportation

proceedings on the ground of lack of notice of the deportation hearing, the Grijalva

presumption requires the IJ and BIA to consider the evidence submitted by an alien

which supports the defense of nondelivery or improper delivery of the notice”). It

follows that the BIA abused its discretion in denying Sandoval’s motion to remand

for an evidentiary hearing on the same grounds.

      Accordingly, we remand to the BIA with the instruction to remand for

further proceedings before the IJ in accordance with this disposition.




                                          2                                     10-71721
      In light of our decision, we need not reach Sandoval’s remaining

contentions.

      PETITION FOR REVIEW GRANTED.




                                        3                                10-71721
