                                                                           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                              NOT FOR PUBLICATION                           JAN 11 2010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.




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