                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 3 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DOLORES CANDELARIA ESTEBAN-                     No.    15-73252
MANUEL and JUAN ESTEBAN-
MANUEL,                                         Agency Nos.       A206-462-884
                                                                  A206-462-885
                Petitioners,

 v.                                             MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                           Submitted October 23, 2017**


Before:      LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.

      Dolores Candelaria Esteban-Manuel and Juan Esteban-Manuel, natives and

citizens of Guatemala, petition for review of the Board of Immigration Appeals’

order dismissing their appeal from an immigration judge’s decision denying their


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
motion to reopen removal proceedings conducted in absentia. We have jurisdiction

under 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 agency abused its discretion in denying petitioners’ motion to reopen

where it relied on conjecture in petitioner’s affidavit regarding the possible

discarding of mail, and did not consider all of the evidence that petitioners offered

to rebut the presumption of delivery. See id. at 986-88 (describing evidence

relevant to overcome presumption of effective service by regular mail); Salta v.

INS, 314 F.3d 1076, 1079 (9th Cir. 2002) (“delivery by regular mail does not raise

the same ‘strong presumption’ [of delivery] as certified mail, and less should be

required to rebut such a presumption.”). On remand, the BIA should consider as

part of its notice analysis petitioners’ compliance with an Immigration and

Customs Enforcement check-in order both before and after the in absentia removal

order was entered. See Sembiring, 499 F.3d at 989 (lack of motive to avoid

immigration proceedings is a factor to be considered).

      PETITION FOR REVIEW GRANTED; REMANDED.




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