Rendon v. Holder , 400 F. App'x 218 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JULIAN RENDON, a.k.a. Julian Nunez- No. 06-71701
Rendon; et al.,
Agency No. A091-427-137
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 8, 2010 **
San Francisco, California
Before: HUG, RYMER and N.R. SMITH, Circuit Judges.
Julian Rendon, a native and citizen of Mexico, petitions for review of the
decision by the Immigration and Naturalization Service’s Legalization Appeals
Unit (LAU). The LAU dismissed his appeal, of the Legalization Director’s denial
*
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).
of his application for legalization under the Special Agricultural Workers (SAW)
program, as untimely. We have jurisdiction pursuant to 8 U.S.C. § 1252 and deny
the petition for review.
The LAU’s finding was neither an abuse of discretion nor directly contrary
to the facts in the record taken as a whole. Rendon did not provide any evidence
that supported his claim that he did not receive notice of the denial of his SAW
application.1 A conclusory statement that one did not receive notice is not
sufficient to overcome a presumption of proper delivery in order to assert a due
process claim. See Sembiring v. Gonzales, 499 F.3d 981, 989-90 (9th Cir. 2007).
The INS took the necessary “additional reasonable steps” to locate Rendon’s
address after the August 14, 1992 Notice of Intent to Deny (sent by certified mail
to Rendon’s address of record) was returned unclaimed. See Jones v. Flowers, 547
U.S. 220, 234 (2006). The INS then sent a second Notice of Intent to Deny to the
last address provided by Rendon (in correspondence to the INS). Although the
second notice was also returned unclaimed, the Notice of Decision mailed to the
same address was not returned. Thus, it is presumed that it was received. See
Busquets-Ivars v. Ashcroft, 333 F.3d 1008, 1009 (9th Cir. 2003) (“[I]t is presumed
1
Nor does Rendon show that the Douglas Immigration and Naturalization
Service (INS) office was actually aware of his application to adjust status. Cf.
Manjiyani v. Ashcroft, 343 F.3d 1018, 1020 (9th Cir. 2003).
2
that a properly-addressed piece of mail placed in the care of the Postal Service has
been delivered.” (quoting Mulder v. Comm’r, 885 F.2d 208, 212 (5th Cir. 1988)).
Therefore, the LAU did not abuse its discretion in finding the appeal untimely.
PETITION FOR REVIEW DENIED.
3