Calderon-Hernandez v. Gonzales
Docket: No. 04-73072
Court: Court of Appeals for the Ninth Circuit; February 21, 2006; Federal Appellate Court
Onelia Calderon-Hernandez, a Guatemalan citizen, petitions for review of the Board of Immigration Appeals (BIA) decision that affirmed an immigration judge's denial of her motion to reopen deportation proceedings conducted in her absence. Jurisdiction is established under 8 U.S.C. § 1252, with the review standard being abuse of discretion. Calderon-Hernandez argued that she did not receive the hearing notices sent to her last known address in Norwalk, California, in 1991. Her affidavit stated she moved to the San Francisco Bay Area before 1993. The BIA found no abuse of discretion in its conclusion that she failed to provide adequate evidence to counter the presumption of proper notice delivery via regular mail. Specifically, her affidavit lacked details on when she moved from Norwalk and whether she resided there when the notices were mailed. The BIA referenced case law, indicating that a sworn affidavit asserting non-receipt does not generally rebut the presumption of delivery unless it includes specific circumstances. Moreover, it was noted that individuals with pending immigration cases must inform the Attorney General of any address changes. The petition for review was ultimately denied, and the decision is not intended for publication or citation in this circuit except as permitted by Ninth Circuit Rule 36-3.