SALAZAR ARVIZU v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-03-05No. No. 19-72939

Summary · law.co

Holding. The petition for review is denied because the BIA did not abuse its discretion in denying the motion to reissue, having properly considered the non-receipt evidence and rationally concluded it was inadequate to rebut the presumption of proper service by mail, particularly given that Salazar-Arvizu had changed his address without notifying the BIA as required.

Armando Salazar-Arvizu, a Mexican citizen, sought court review of the Board of Immigration Appeals' refusal to reissue an earlier decision that had dismissed his appeal challenging his inadmissibility and ineligibility to become a lawful permanent resident. Salazar-Arvizu argued he never received the BIA's original decision, submitting evidence of non-receipt, but the BIA concluded this evidence was insufficient to overcome the presumption that it properly mailed the decision through the postal system. The court examined whether the BIA abused its discretion in reaching this conclusion, applying a standard that an abuse occurs only when an agency acts arbitrarily, irrationally, or contrary to law.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether the BIA abused its discretion in denying a motion to reissue a decision
Adequacy of evidence of non-receipt to rebut the presumption of proper mailing
Failure to notify immigration authorities of address change before decision issuance

Procedural posture

The petitioner sought review in the Court of Appeals of the BIA's denial of a motion to reissue its earlier decision dismissing an immigration appeal.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Armando Salazar-Arvizu, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision denying his motion to reissue its earlier decision dismissing his appeal of the IJs finding that he is inadmissible and not eligible to adjust his status to lawful permanent resident. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the BIAs denial of a motion to reissue its earlier decision. Hernandez-Velasquez v. Holder, 611 F.3d 1073, 1077 (9th Cir. 2010) (citing Lainez–Ortiz v. I.N.S., 96 F.3d 393, 395 (9th Cir.1996)). The BIA abuses its discretion when it acts “arbitrar[ily], irrational[ly], or contrary to law.” Ontiveros–Lopez v. I.N.S., 213 F.3d 1121, 1124 (9th Cir.2000). We deny the petition for review.

The BIA did not abuse its discretion in denying the motion to reissue its earlier decision because the BIA duly considered the evidence of non-receipt of its earlier decision and concluded that it was insufficient to rebut the presumption the BIA fulfilled its duty of service by proper mailing of its earlier decision. See Hernandez-Velasquez, 611 F.3d at 1078 (citing Singh v. Gonzales, 494 F.3d 1170, 1172–73 (9th Cir. 2007)). Further, the BIA did not act arbitrarily, irrationally, or contrary to law in reaching this conclusion. Counsels letter of non-receipt was unsworn and, although Salazar-Arvizu submitted a sworn affidavit, he had moved to a new address prior to the issuance of the decision without notifying the BIA as instructed on the Notice of Appeal form and as required by regulation. Cf. Singh v. I.N.S., 295 F.3d 1037, 1039 (9th Cir. 2002) (reversing denial of motion to reopen if arbitrary, capricious, or contrary to law). DENIED.