FILED
NOT FOR PUBLICATION MAR 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS 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