FILED
NOT FOR PUBLICATION APR 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAVIER MENDOZA-VALENCIA; No. 09-72242
SILVIA MENDOZA,
Agency Nos. A077-110-774
Petitioners, A077-110-773
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2011 **
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
Javier Mendoza-Valencia and Silvia Mendoza, natives and citizens of
Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”)
order denying their motion to reopen based on ineffective assistance of counsel.
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of
*
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).
discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785,
791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen because it was filed more than four years after the BIA’s May 28, 2004,
order, see 8 C.F.R. § 1003.2(c)(2), and petitioners failed to demonstrate that they
acted with the due diligence required for equitable tolling, see Iturribarria v. INS,
321 F.3d 889, 899 (9th Cir. 2003) (equitable tolling available “when a petitioner is
prevented from filing because of deception, fraud, or error, as long as the petitioner
acts with due diligence”).
We lack jurisdiction to consider petitioners’ challenge to the BIA’s May 28,
2004, order because this petition is not timely as to that order. See 8 U.S.C.
§ 1252(b)(1); Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003).
Petitioners’ remaining contentions are unavailing.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 09-72242