Gaspar-Francisco v. Bondi

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 11 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JUANA GASPAR- No. 22-126 FRANCISCO; EMANUEL GASPAR- Agency Nos. GASPAR; JUANA SENAIDA GASPAR- A209-397-960 GASPAR, A209-397-962 A209-397-961 Petitioners, v. MEMORANDUM* PAMELA J. BONDI, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 4, 2025** Pasadena, California Before: MILLER, LEE, and DESAI, Circuit Judges. Juana Gaspar-Francisco and her two children—all citizens and natives of Guatemala—petition for review of the Board of Immigration Appeals’ (BIA) denial * 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). of their motion to reconsider a denial of their motion to reopen. That earlier motion, made under 8 U.S.C. § 1229a(b)(5)(C)(ii), asked the BIA to reopen the case on the basis that Gaspar-Francisco allegedly never received notice of the hearing at which the Immigration Judge (IJ) ordered her and her children removed in absentia. We deny the petition. We have jurisdiction under 8 U.S.C. § 1252(a). We review the BIA’s denial of a motion to reconsider for abuse of discretion. Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004). The BIA abuses its discretion only when it acts arbitrarily, irrationally, or contrary to law. Id. We review purely legal questions de novo and factual findings for substantial evidence. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). The BIA did not abuse its discretion in determining that Gaspar-Francisco presented insufficient evidence to overcome the presumption that she received the notice via regular mail. See Salta v. INS, 314 F.3d 1076, 1078-79 (9th Cir. 2002) (stating the general presumption that a petitioner receives notice of removal proceedings sent by regular mail). The test to determine if a petitioner can overcome the delivery presumption is “practical and commonsensical.” Sembiring v. Gonzales, 499 F.3d 981, 988 (9th Cir. 2007). In its original decision denying the motion to reopen, the BIA acknowledged Gaspar-Francisco’s declaration that she never received the notice, but it explained 2 22-126 that Gaspar-Francisco did not provide sufficient evidence to rebut the presumption of delivery because she did not support her motion with a declaration from the homeowner or other residents “regarding the alleged non-delivery of the notice.” With her motion to reconsider, Gaspar-Francisco submitted a declaration claiming that she did not receive notice of the hearing but stating that she was unsure if her non-receipt was caused by her landlords who occasionally mishandle her mail. Gaspar-Francisco also submitted declarations from her landlords confirming that they occasionally mishandle mail. However, the declarations do not expressly state that the landlords lost the notice of Gaspar-Francisco’s hearing or that they never received the notice in the first place. Because neither Gaspar-Francisco’s nor her landlords’ declarations prove that she or a responsible party at the address did not receive notice, the BIA’s determination that the landlords’ declarations were “inconclusive and unpersuasive” was not arbitrary, irrational, or contrary to law. See Salta, 314 F.3d at 1079; Sembiring, 499 F.3d at 990–91. Without more, the declarations’ vague and speculative assertions cannot defeat the presumption that Gaspar-Francisco received notice. See In re G-Y-R, 23 I. & N. Dec. 181, 189 (B.I.A. 2001) (explaining that a petitioner can be charged with receiving proper notice where the notice “reaches the correct address but does not reach the [petitioner] through some failure in the internal 3 22-126 workings of the household”). We DENY the petition. 4 22-126