FILED
NOT FOR PUBLICATION JUN 06 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIANO ABUNDEZ MORAN; No. 10-73484
DOLORES GARCIA PERALTA;
GABRIELLE ABUNDEZ Agency Nos. A075-473-727
HERNANDEZ; SERGIO ABUNDEZ A075-489-386
HERNANDEZ; YANELY ABUNDEZ A074-352-726
HERNANDEZ, AKA Yanelli Abundez A074-352-727
Hernandez, A074-352-728
Petitioners,
MEMORANDUM*
v.
ERIC H. HOLDER, Jr., Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 4, 2014**
Pasadena, California
Before: KOZINSKI, Chief Judge, TROTT and CALLAHAN, Circuit
Judges.
*
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).
page 2
The Board of Immigration Appeals didn’t abuse its discretion in affirming
the Immigration Judge’s denial of petitioners’ untimely motion to reopen. See
Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008). Equitable tolling is
inappropriate in this case because petitioners didn’t exercise due diligence during
the six years they waited between the initial denial of their request for cancellation
of removal and their motion to reopen. See Iturribarria v. INS, 321 F.3d 889, 897
(9th Cir. 2003). Petitioners claim that they were not aware of counsel’s failure to
present certain evidence, but they were at the hearing and thus were aware of what
evidence the lawyer introduced. Their failure to retain new counsel or otherwise
ascertain the status of their appeal demonstrates a lack of diligence. See Singh v.
Gonzales, 491 F.3d 1090, 1096–97 (9th Cir. 2007).
Even if they had been diligent, petitioners are unable to demonstrate that
their attorneys’ failure to introduce evidence of their son’s enlarged tonsils
prejudiced their case. See Mohammed v. Gonzales, 400 F.3d 785, 793–94 (9th
Cir. 2005). The enlarged tonsils don’t constitute an “exceptional and extremely
unusual hardship,” as required for cancellation of removal. 8 U.S.C.
§ 1229b(b)(1)(D).
DENIED.