Morataya v. Gonzales

MEMORANDUM ** Imelda Morataya, a native and citizen of Guatemala, petitions for review of the — 470 — Board of Immigration Appeals’ (“BIA”) order denying her motion to remand and dismissing her appeal from an immigration judge’s (“IJ”) order denying her motion to reopen deportation proceedings conducted in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion, Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000), and grant the petition for review. Morataya moved to remand on the ground that the IJ should not have denied her motion to reopen as untimely because the Order to Show Cause (“OSC”) was not properly served. See 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2) (motion to reopen deportation proceedings conducted in absentia may be filed at any time if the alien did not receive notice). In denying Morataya’s motion to remand, the BIA applied the service requirements for notices of hearing rather than OSC’s. See Matter of M-D-, 23 I. & N. Dec. 540, 544, 2002 WL 31862204 (BIA 2002) (explaining that the service requirements for notices of hearing differ from those for OSC’s). We remand to the BIA to consider whether, applying the correct standard, the OSC was properly served. PETITION FOR REVIEW GRANTED; REMANDED. Footnotes [**] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.