U.S. Court of Appeals for the Ninth Circuit, 2010

Victor Rakovitch Sergeyvitch v. Eric H. Holder Jr.

U.S. Court of Appeals for the Ninth Circuit · Decided February 16, 2010 · Goodwin, Wallace, Fisher

365 F. App'x 811

Counsel

Joseph J. Rose, Esquire, Law Office of Joseph J. Rose, New York, NY, for Petitioner., Corey Leigh Farrell, Hillel R. Smith, Esquire, U.S. Department of Justice, Washington, DC, District Counsel, Esquire, Office of the District Counsel Department of Homeland Security, Los An-geles, CA, Ronald E. Lefevre, Office of the District Counsel Department of Homeland Security, San Francisco, CA, for Respondent.

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT FEB 16 2010

MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS

VICTOR RAKOVITCH SERGEYVITCH, No. 08-71078

Petitioner, Agency No. A079-523-963 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.

Victor Rakovitch Sergeyvitch, a native of Kazakhstan and citizen of Russia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. motion to reopen proceedings held in absentia. We have jurisdiction under 8 U.S.C. § 1252. Reviewing 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 IJ did not abuse his discretion in denying Sergeyvitch’s motion to reopen because written notice of the hearing was mailed to the most recent address provided by Sergeyvitch. See 8 U.S.C. § 1229a(b)(5)(A); see also In re Grijalva, 21 I. & N. Dec. 27, 32-34 (BIA 1995) (proof of actual service or receipt of the notice by the respondent is not required).

The BIA properly concluded that petitioner failed to show exceptional circumstances for his absence on account of ineffective assistance by a non- attorney because he failed to comply with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and the ineffective assistance is not plain on the face of the record. See Reyes v. Ashcroft, 358 F.3d 592, 597-99 (9th Cir. 2004).

Contrary to Sergeyvitch’s assertion, the BIA acted within its regulatory authority in reviewing the IJ’s factual findings for error. See 8 C.F.R. § 1003.1(d)(3)(I).

NHY/Research 2 08-71078

We grant Petitioner’s motion to expedite the petition for review. PETITION FOR REVIEW DENIED.

FILED

FEB 16 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS

FISHER, Circuit Judge, concurring:

I concur in the result reached by the majority.

NHY/Research 3 08-71078

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). NHY/Research

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