Hermosillo v. Mukasey

MEMORANDUM ** Jose de Jesus Garcia Hermosillo and Gloria Quinonez Arellano, married natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen proceedings to reissue its decision denying petitioners’ motion to reopen alleging ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252 . Reviewing for abuse of discretion, Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004), amended by 404 F.3d 1105 (9th Cir.2005), we grant the petition and remand for further proceedings. The BIA abused its discretion by failing to address the affidavit Garcia Hermosillo submitted to show petitioners did not receive the BIA’s March 23, 2004 decision. See Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir.2007) (presumption of proper mailing created by transmittal cover letter may be overcome by evidence of non-receipt by a petitioner or counsel). We remand for the BIA to review the evidence in the first instance and to determine whether it is sufficient to overcome the presumption of mailing. *652 PETITION FOR REVIEW GRANTED; REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.