Moussa Ndiaye v. Eric Holder, Jr., No. 09-71558 (9th Cir. 2011)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 22 2011 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT MOUSSA NDIAYE, No. 09-71558 Petitioner, Agency No. A077-383-406 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 8, 2011 ** Before: FARRIS, LEAVY, and BYBEE, Circuit Judges. Moussa Ndiaye, a native and citizen of Mauritania, petitions for review of the Board of Immigration Appeals ( BIA ) order dismissing his appeal from an immigration judge s decision denying his motion to reopen removal proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review * 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). for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny the petition for review. The agency did not abuse its discretion in denying Ndiaye s motion to reopen where written notice of the hearing was mailed to the most recent address provided by Ndiaye and he admitted to receiving the notice, see 8 U.S.C. §§ 1229(c), 1229a(b)(5)(A), and where Ndiaye also failed to establish that his failure to appear was because of exceptional circumstances, see 8 U.S.C. § 1229a(e)(1). In his opening brief, Ndiaye fails to address, and therefore has waived any challenge to, the BIA s determination that he failed to provide previously unavailable evidence or evidence of changed country conditions relevant to his asylum application. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996). PETITION FOR REVIEW DENIED. 2 09-71558

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