FILED
NOT FOR PUBLICATION APR 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SERGIO VARGAS CANO and MARIA No. 09-71138
DEL PILAR VARGAS,
Agency Nos. A075-728-732
Petitioners, A075-728-733
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.
Sergio Vargas Cano and Maria Del Pilar Vargas, natives and citizens of
Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order
denying their motion to reopen removal proceedings. We have jurisdiction under 8
U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen,
*
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).
and de novo ineffective assistance of counsel claims, Mohammed v. Gonzales, 400
F.3d 785, 791-92 (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 three years after the BIA’s final
order of removal, see 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed
within 90 days of final order of removal), and petitioners did not show they were
entitled to equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.
2003).
Petitioners’ contention that the BIA erred by failing to address their statutory
right to counsel claim is unavailing because the BIA denied the motion on
timeliness grounds.
PETITION FOR REVIEW DENIED.
2 09-71138