Escareno-Carillo

MEMORANDUM ***

Santos Escareno-Carillo, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) July 8, 2003 denial of his motion to reopen in absentia removal proceedings. We have jurisdiction under 8 U.S.C. § 1252 , and review the denial of a motion to reopen for abuse of discretion, see Celis-Castellano v. Ashcroft, 298 F.3d 888, 890 (9th Cir.2002).

Petitioner asserts that service of the hearing notice on his then twelve-year-old daughter was improper, and offers an affidavit of his daughter as proof of the inadequacy of service. We find that the BIA did not abuse its discretion in denying Petitioner’s motion to reopen because the record indicates that Petitioner did not explain why he waited over four years since his initial motion to reopen before presenting the affidavit. See 8 C.F.R. § 1003.2 (c)(1) (2003) (stating that a motion to reopen proceedings shall not be granted unless evidence sought to be offered was not available at the former hearing); see also Malty v. Ashcroft, 381 F.3d 942, 945-46 (9th Cir.2004) (noting that motion to reopen must be based on new evidence).

Petitioner also alleges that his due process rights were…