FILED
NOT FOR PUBLICATION MAR 02 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROSA MARIA MORALES LEMUS and Nos. 09-70088
JENNEFER MARIA MARTINEZ 09-72760
MORALES,
Agency Nos. A029-274-266
Petitioners, A029-274-267
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
In these consolidated petitions for review, Rosa Maria Morales Lemus and
Jennefer Maria Martinez Morales, natives and citizens of Guatemala, petition for
review of the Board of Immigration Appeals’ (“BIA”) order denying their 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).
to reopen on the basis of ineffective assistance of counsel, and order denying their
motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review for
abuse of discretion the denial of a motion to reopen or reconsider, Mohammed v.
Gonzales, 400 F.3d 785, 791 (9th Cir. 2005), and we deny the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen as untimely because it was filed more than eight years after the September
11, 1998, deadline for motions to reopen for the purpose of filing an application for
special rule cancellation of removal under the Nicaraguan Adjustment and Central
American Relief Act of 1997, see 8 C.F.R. § 1003.43(e)(1), and petitioners failed
to establish that they acted with the due diligence required for equitable tolling, see
Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (equitable tolling is available
where “petitioner is prevented from filing because of deception, fraud, or error, as
long as the petitioner acts with due diligence”).
Accordingly, the BIA did not abuse its discretion in denying petitioners’
motion to reconsider. See 8 C.F.R. § 1003.2(b)(1) (“A motion to reconsider shall
state the reasons for the motion by specifying the errors of fact or law in the prior
Board decision . . . .”).
PETITION FOR REVIEW DENIED.
2 09-72760