                                                                           FILED
                                                                            NOV 22 2010
                              NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                     UNITED STATES COURT OF APPEALS

                              FOR THE NINTH CIRCUIT



SERGIY RAYSKYY,                                   No. 04-73868

               Petitioner,                        Agency No. A079-813-149

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

               Respondent.



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

                             Submitted November 16, 2010 **

Before:        TASHIMA, BERZON, and CLIFTON, Circuit Judges.

       Sergiy Rayskyy, a native and citizen of Ukraine, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. Our

jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the




          *
             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).
denial of a motion to reopen, INS v. Doherty, 502 U.S. 314, 323-24 (1992), and we

deny in part and dismiss in part the petition for review.

       We reject Rayskyy’s contention that the BIA erred by failing to address his

argument of worsening country conditions in Ukraine because Rayskyy’s motion

was not supported by an affidavit or other relevant evidentiary material. See Patel

v. INS, 741 F.2d 1134, 1137 (9th Cir. 1984) (“[I]n the context of a motion to

reopen, the BIA is not required to consider allegations unsupported by affidavits or

other evidentiary material.”); see also Doherty, 502 U.S at 323-24 (the moving

party must show evidence could not have been discovered or presented at the

former hearing). Moreover, to the extent Rayskyy contends the BIA failed to

consider some or all of the evidence submitted with the motion to reopen, he has

not overcome the presumption that the BIA did review the record. See Fernandez

v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006). Accordingly, the BIA acted within

its broad discretion in denying Rayskyy’s motion to reopen. See Singh v. INS, 295

F.3d 1037, 1039 (9th Cir. 2002) (BIA’s denial of a motion to reopen shall be

reversed if it is “arbitrary, irrational, or contrary to law”).

       Rayskyy’s contention that the BIA’s summary affirmance of his asylum

claim violated due process was not raised before the BIA, see Barron v. Ashcroft,

358 F.3d 674, 677-78 (9th Cir. 2004), in any event is foreclosed by Falcon


                                             2                                  04-73868
Carriche v. Ashcroft, 350 F.3d 845, 848 (9th Cir. 2003) (BIA’s summary

affirmance procedure does not violate due process), and is dismissed.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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