Figueroa-Bahena, et al v. Holder, No. 08-70220 (9th Cir. 2010)

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FILED AUG 31 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT FLORENCIO FIGUEROA-BAHENA; MARIA VICTORIA FIGUEROA; LIONEL FIGUEROA, Petitioners, No. 08-70220 Agency Nos. A095-195-924 A095-195-925 A095-195-926 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 10, 2010 ** Before: LEAVY, HAWKINS, and IKUTA, Circuit Judges. Florencio Figueroa-Bahena, Maria Victoria Figueroa, and Lionel Figueroa, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals ( BIA ) order denying their motion to reissue the BIA s * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). previous decision dismissing their appeal from an immigration judge s order denying their applications for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and de novo claims of due process violations. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We deny the petition for review. The BIA did not abuse its discretion or violate due process in denying petitioners motion to reissue, where it considered their evidence of non-receipt and concluded that it was insufficient to rebut the presumption of proper mailing. See Singh v. Gonzales, 494 F.3d 1170, 1172-73 (9th Cir. 2007) (BIA is obligated to consider and address the evidence submitted by petitioner); see also Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error for petitioner to prevail on a due process claim). PETITION FOR REVIEW DENIED. 2 08-70220

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