Tinoco-Ramirez v. Keisler

MEMORANDUM *** Temo Tinoeo-Ramirez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) refusal to either reopen or reissue a decision affirming an Immigration Judge’s denial of cancellation of removal. Tinoeo-Ramirez contends that, because he did not receive notice of the BIA’s decision, he stayed beyond his voluntary departure date and is now precluded from adjusting his status based on his marriage to a United States citizen. We grant the petition and remand for further proceedings. We recently considered whether the BIA abuses its discretion when it refuses to reopen or reissue a decision that the alien claims he did not receive. See Singh v. Gonzales, 494 F.3d 1170 (9th Cir.2007). We noted that evidence of proper mailing creates a presumption that may be overcome by “affidavits of nonreceipt by both a petitioner and his counsel of record.” Id. at 1172 . Such affidavits were filed by Singh and his counsel, but it was unclear whether the BIA considered them “or what process it would have followed assuming the affidavits were sufficient to rebut the presumption of mailing.” Id. at 1173 . Accordingly, we remanded the matter to the BIA. Id. Here, the BIA denied relief without commenting on the sufficiency of the affidavits submitted by Tinoeo-Ramirez and his former attorney. Singh requires us to remand to permit the BIA in the first instance to review the affidavits to determine if they are sufficient to overcome the presumption of delivery. PETITION FOR REVIEW GRANTED; REMANDED FOR FURTHER PROCEEDINGS. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.