                              NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                       FILED
                              FOR THE NINTH CIRCUIT                         FEB 16 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

 VICTOR RAKOVITCH SERGEYVITCH,                    No. 08-71078

               Petitioner,                        Agency No. A079-523-963

   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.

        Victor Rakovitch Sergeyvitch, a native of Kazakhstan and citizen of Russia,

petitions for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing his appeal from an immigration judge’s (“IJ”) decision denying his



          *
             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).

NHY/Research
motion to reopen proceedings held in absentia. We have jurisdiction under 8

U.S.C. § 1252. Reviewing 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 IJ did not abuse his discretion in denying Sergeyvitch’s motion to

reopen because written notice of the hearing was mailed to the most recent address

provided by Sergeyvitch. See 8 U.S.C. § 1229a(b)(5)(A); see also In re Grijalva,

21 I. & N. Dec. 27, 32-34 (BIA 1995) (proof of actual service or receipt of the

notice by the respondent is not required).

         The BIA properly concluded that petitioner failed to show exceptional

circumstances for his absence on account of ineffective assistance by a non-

attorney because he failed to comply with the requirements set forth in Matter of

Lozada, 19 I. & N. Dec. 637 (BIA 1988), and the ineffective assistance is not plain

on the face of the record. See Reyes v. Ashcroft, 358 F.3d 592, 597-99 (9th Cir.

2004).

         Contrary to Sergeyvitch’s assertion, the BIA acted within its regulatory

authority in reviewing the IJ’s factual findings for error. See 8 C.F.R.

§ 1003.1(d)(3)(I).




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       We grant Petitioner’s motion to expedite the petition for review.

       PETITION FOR REVIEW DENIED.


                                                                       FILED
                                                                           FEB 16 2010

                                                                    MOLLY C. DWYER, CLERK
                                                                     U .S. C O U R T OF APPE ALS


FISHER, Circuit Judge, concurring:

       I concur in the result reached by the majority.




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