Laura Catalina Juarez Castro v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAURA CATALINA JUAREZ CASTRO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-73313
Agency No. A212-967-593
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 18, 2022**
Pasadena, California
Before: HIGGINSON,*** CHRISTEN, and BUMATAY, Circuit Judges.
Dissent by Judge BUMATAY.
FILED
NOV 30 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Stephen A. Higginson, United States Circuit Judge for
the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.

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Petitioner Laura Catalina Juarez Castro, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (BIA) order affirming
the immigration judge’s (IJ) denial of Juarez Castro’s motion to reopen her asylum
proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the
petition and remand for reconsideration of petitioner’s motion to reopen. Because
the parties are familiar with the facts, we do not recite them here.
Our review is confined to the grounds relied upon by the BIA. Garcia v.
Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021). We review the denial of a motion
to reopen for an abuse of discretion. Sembiring v. Gonzales, 499 F.3d 981, 985
(9th Cir. 2007). The BIA abuses its discretion when it acts “arbitrarily, irrationally
or contrary to the law.” Id. We review de novo questions of law, and we review
the agency’s factual findings for substantial evidence. Abebe v. Gonzales, 432
F.3d 1037, 1039–40 (9th Cir. 2005) (en banc).
We conclude that Juarez Castro’s exceptional circumstances and notice
arguments were exhausted as a matter of law, and we reject the government’s
suggestion to the contrary. Juarez Castro’s submissions to the IJ and BIA both
invoked the challenges that Juarez Castro faces while taking care of her autistic
children and explained the circumstances that prevented her from attending her
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hearing. See Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020) (observing that a
claim is exhausted when a petitioner raises it before the BIA).
The BIA correctly recognized that a presumption of receipt attaches to
notices sent by regular mail, and this presumption is weaker than the presumption
that applies to certified mail. See Salta v. INS, 314 F.3d 1076, 1079 (9th Cir.
2002). But the BIA failed to apply our case law when it determined the facts and
circumstances in petitioner’s case did not rebut this presumption because it
concluded that petitioner’s “unsupported denial of receipt” was “weak evidence”
that she did not receive the notice of hearing. “[C]redibility determinations on
motions to reopen are inappropriate,” Yang v. Lynch, 822 F.3d 504, 508 (9th Cir.
2016) (quoting Bhasin v. Gonzales, 423 F.3d 977, 986 (9th Cir. 2005)), and the
BIA is required to “accept as true the facts asserted by the petitioner” unless an
assertion is“inherently unbelievable,” Agonafer v. Sessions, 859 F.3d 1198, 1203
(9th Cir. 2017) (internal quotation marks omitted). The test for whether a
petitioner has overcome the presumption of receipt for regular mail is “practical
and commonsensical.” Sembiring, 499 F.3d at 987. In Salta, we explained that
“[w]here a petitioner actually initiates a proceeding to obtain a benefit, appears at
an earlier hearing, and has no motive to avoid the hearing, a sworn affidavit from
[petitioner] that neither she nor a responsible party residing at her address received
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the notice should ordinarily be sufficient to rebut the presumption of delivery and
entitle [her] to an evidentiary hearing to consider the veracity of her allegations.”
Salta, 314 F.3d at 1079. Similarly, in Sembiring, we held that a petitioner
overcame the presumption of effective service of regular mail because, among
other things, she “initiat[ed] a proceeding to obtain a benefit” by filing an
affirmative application for asylum, her letter to the IJ for reopening was “written
promptly,” and the government’s circumstantial evidence that the mail was
delivered was weak. 499 F.3d at 989. We did not fault Sembiring for her failure to
submit a sworn affidavit because pro se submissions for aliens are “liberally
construed.” Id. at 990.
Juarez Castro initiated proceedings for her benefit by filing an affirmative
application for asylum; her pro se motion to reopen and supporting affidavit were
submitted to the IJ one day after her hearing was scheduled and the same day she
learned she missed the hearing; she had a strong motive to attend the hearing
because she has two disabled children, and no motive to avoid the hearing; and she
submitted a sworn statement that she did not receive the notice of hearing. These
factors align with the factors our case law has deemed sufficient to overcome the
presumption of receipt. See id. at 988–90; Salta, 314 F.3d at 1079.
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The IJ did not consider whether Juarez Castro demonstrated exceptional
circumstances, and the BIA did not apply the appropriate standard when it
considered Juarez Castro’s sworn declaration. Juarez Castro provided records
corroborating the severity of her children’s autism, which complicates her own
ability to communicate with them and requires intensive therapy from several
psychologists and therapists. The dissent questions whether Juarez Castro’s failure
to appear was “because of” her children’s conditions, but her statement explains
how her autistic children climbed on a chair, knocked her calendar to the floor, and
it appears papers in the calendar were misplaced in the process of putting the
calendar back. Juarez Castro’s explanation is not inherently unbelievable. See
Agonafer, 859 F.3d at 1203. We remand to the BIA with directions to apply the
correct legal standard to Juarez Castro’s notice argument and reconsider whether
Juarez Castro has shown exceptional circumstances under our case law, given the
corroborating evidence of her children’s condition filed in conjunction with her
motion to reopen.
PETITION GRANTED AND REMANDED.
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1
Laura Catalina Juarez Castro v. Merrick B. Garland, No. 20-73313
BUMATAY, Circuit Judge, dissenting:
Under the presumptions and deferential standard of review that guide our
analysis, I would deny this petition. Because Laura Juarez Castro has not shown
that the BIA acted “arbitrarily, irrationally, or contrary to the law,” Sembiring v.
Gonzales, 499 F.3d 981, 985 (9th Cir. 2007), I respectfully dissent.
I.
A.
There’s a presumption that aliens receive notices sent by immigration courts
through the mail. Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002); Sembiring, 499
F.3d at 986. While the presumption is at its strongest when the notice is sent by
certified mail, the presumption exists nonetheless for regular mail. Sembiring, 499
F.3d at 987. In reviewing an alien’s claim that she didn’t receive notice, our inquiry
is “practical and commonsensical rather than rigidly formulaic.” Id. at 988.
Here, the BIA had ample grounds to conclude that Juarez Castro failed to rebut
the presumption that she received notice of her June 13 hearing date. First, the notice
to appear was sent to the address that Juarez Castro provided in her asylum
application. Second, Juarez Castro’s affidavit to the immigration judge strongly
suggests that she did receive notice for her June 13 hearing. She acknowledged that
she knew that the date of her originally scheduled hearing was May 10. And she
acknowledged that she knew her May 10 hearing had been rescheduled. But
FILED
NOV 30 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
according to the record, the only document that notified Juarez Castro that the May
10 hearing was rescheduled was the same notice that provided for the June 12
hearing date. So Juarez Castro’s own affidavit is strong evidence that she received
notice of the June 12 hearing. Third, as the BIA noted, Juarez Castro provided no
support for her claim of not receiving notice, even though such corroboration could
have easily been provided.
Because the record contains indications that Juarez Castro did receive notice
of her hearing, the BIA did not abuse its discretion by holding that she did not rebut
the presumption of effective service.
B.
The record also supports the BIA’s determination that Juarez Castro did not
show exceptional circumstances sufficient to excuse her failure to appear.
Exceptional circumstances are defined as instances like “battery or extreme cruelty
to the alien or any child or parent of the alien, serious illness of the alien, or serious
illness or death of the spouse, child, or parent of the alien.” 8 U.S.C. §
1129a(b)(5)(C)(i), (e)(1). To succeed on a motion to reopen based on exceptional
circumstances, an alien must establish “that the failure to appear was because of
exceptional circumstances.” 8 U.S.C. § 1129a(b)(5)(C)(i) (emphasis added).
Though the record indicates that her children suffer from autism, Juarez
Castro did not explain how she missed her hearing “because of” her children’s

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3
conditions. Instead, she ascribes her failure to appear to confusion over the hearing
date after her children knocked her calendar off the wall and pages fell loose. But
as any parent knows, such incidents can occur whether or not children suffer from
medical conditions. While I’m sympathetic to Juarez Castro’s situation, her
explanation stops short of showing that her “‘exceptional circumstances’ prevented
[her] from appearing.” Celis-Castellano v. Ashcroft, 298 F.3d 888, 891 (9th Cir.
2002) (simplified). I therefore cannot say that the BIA abused its discretion.
II.
Because we should have denied the petition for review, I respectfully dissent.

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