                                                                             FILED
                             NOT FOR PUBLICATION                              APR 27 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



AVTAR SINGH RIAT,                                 No. 09-72142

               Petitioner,                        Agency No. A075-019-619

  v.
                                                  MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                              Submitted April 5, 2011 **

Before:        B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

       Avtar Singh Riat, a native and citizen of India, petitions pro se for review of

the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s decision denying his motion to reopen deportation

proceedings held in absentia. Our jurisdiction is governed by 8 U.S.C. § 1252.


          *
             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).
We review for abuse of discretion the denial of a motion to reopen for abuse of

discretion, and review de novo questions of law. Mohammed v. Gonzales, 400

F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition

for review.

      The agency did not abuse its discretion in denying Riat’s motion to reopen

based on ineffective assistance of counsel where Riat failed to show he had been

prejudiced by former counsel. See id. at 793-94 (“[P]rejudice results when ‘the

performance of counsel was so inadequate that it may have affected the outcome of

the proceedings.’”).

      In his opening brief, Riat fails to address, and therefore has waived any

challenge to, the agency’s determination that his motion to reopen to adjust status

was untimely. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.

1996) (holding issues that are not specifically raised and argued in a party’s

opening brief are waived).

      We lack jurisdiction to review the agency’s decision not to invoke its sua

sponte authority to reopen proceedings. See Mejia-Hernandez v. Holder, No. 07-

74277, 2011 WL 240357, at *4 (9th Cir. Jan. 27, 2011).

      Riat’s remaining contention is unavailing.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.


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