Antonio Santiago Penaloza v. Eric Holder, Jr. ( 2011 )

FILED
NOT FOR PUBLICATION APR 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANTONIO SANTIAGO PENALOZA; No. 09-71251
ESMERALDA NUNEZ BENITEZ
SANTIAGO, a.k.a. Esmeralda Santiago Agency Nos. A075-653-689
Nunez, a.k.a. Esmeralda Nunez Beniez A075-653-698
Santiago,
Petitioners, MEMORANDUM *
v.
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.
Antonio Santiago Penaloza and Esmeralda Nunez Benitez Santiago, natives
and citizens of Mexico, petition for review of the Board of Immigration Appeals’
*
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).
(“BIA”) order denying their motion to reopen or reissue based on ineffective
assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for
abuse of discretion the BIA’s denial of a motion to reopen, Hernandez-Velasquez
v. Holder, 611 F.3d 1073, 1077 (9th Cir. 2010), and we deny the petition for
review.
The BIA did not abuse its discretion in denying petitioners’ motion as
untimely where they filed the motion more than seven years after the final order of
removal, see 8 C.F.R. § 1003.2(c)(2), and they failed to establish the due diligence
required for equitable tolling of the filing deadline, see Iturribarria v. INS, 321
F.3d 889, 897 (9th Cir. 2003).
In light of our disposition, we need not reach petitioners’ remaining
contentions.
PETITION FOR REVIEW DENIED.
2 09-71251