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                              NOT FOR PUBLICATION                           JAN 11 2010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, 

, 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, 

, 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, 

, 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, 

, 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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