Rivas-Almendarez v. Holder

FILED
NOT FOR PUBLICATION JAN 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WALTER ERNESTO RIVAS- No. 07-70707
ALMENDAREZ,
Agency No. A029-252-622
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE and FISHER, Circuit Judges.
Walter Ernesto Rivas-Almendarez, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s (“IJ”) order denying his motion
*
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).
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to reopen deportation proceedings conducted in absentia. We have jurisdiction
under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny the
petition for review.
The BIA did not abuse its discretion in denying Rivas-Almendarez’s motion
to reopen to rescind his deportation order because the hearing notice was sent by
regular mail to the address last provided by Rivas-Almendarez, as was acceptable
under the regulations in force at the time. See 8 U.S.C. §1252(3)(B)(1) (1990)
(requiring notice of hearing but not specifying form of service required); 8 C.F.R.
§ 3.17 (1990) (same); Matter of Munoz-Santos, 20 I. & N. Dec. 205, 207 (BIA
1990) (routine service to last address provided was adequate for notice of hearing);
cf. Sembiring v. Gonzales, 499 F.3d 981, 988-90 (9th Cir. 2007) (describing
evidence sufficient to overcome presumption of effective service). Rivas-
Almendarez’s due process claim regarding the use of regular mail therefore fails.
See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on
due process claim).
Rivas-Almendarez has waived any challenge to the BIA’s denial as untimely
of his motion to reopen to seek benefits under the Nicaraguan and Central
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American Relief Act of 1997. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259
(9th Cir. 1996) (arguments not raised in the opening brief are deemed waived).
Finally, Rivas-Almendarez’s contention that his May 16, 2006, unopposed
motion to reopen should have been automatically granted lacks merit.
PETITION FOR REVIEW DENIED.
SS/Research 3 07-70707