                                                                           FILED
                             NOT FOR PUBLICATION                           MAR 19 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


ERICK PAOLO MELGAR DUARTE,                       No. 12-73631

               Petitioner,                       Agency No. A070-553-138

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

               Respondent.


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

                             Submitted March 10, 2014**

Before:        PREGERSON, LEAVY, and MURGUIA, Circuit Judges.

       Erick Paolo Melgar Duarte, a native and citizen of Guatemala, petitions for

review of an order of the Board of Immigration Appeals (“BIA”) dismissing his

appeal from the decision of an immigration judge (“IJ”) denying his motion to

reopen removal proceedings conducted in absentia. We have jurisdiction under


          *
             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).
8 U.S.C. § 1252. 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.

      The BIA abused its discretion by denying Melgar Duarte’s motion to reopen

based on lack of notice because Melgar Duarte presented sufficient evidence of

nondelivery of the hearing notice to overcome the weak presumption of effective

delivery applicable to service of notices sent by regular mail. See

Mejia-Hernandez v. Holder, 633 F.3d 818, 822 (9th Cir. 2011) (“Where a

petitioner actually initiates a proceeding to obtain a benefit, appears at an earlier

hearing, and has no motive to avoid the hearing, a sworn affidavit from petitioner

that neither [he] nor a responsible party residing at [his] address received the notice

should ordinarily be sufficient to rebut the presumption of [regular mail] delivery.”

(citation omitted)); see also Sembiring, 499 F.3d at 988 (“[Filing an] asylum

application falls directly within [the] description of ‘initiat[ing] a proceeding to

obtain a benefit.’” (citation omitted)).

      We therefore grant the petition for review and remand the matter to the BIA

with directions that it remand to the IJ to grant Melgar Duarte’s motion to reopen

in order to rescind the in absentia removal order entered against him.

      PETITION FOR REVIEW GRANTED; REMANDED.


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