                                                                             FILED
                              NOT FOR PUBLICATION                            MAR 01 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                               FOR THE NINTH CIRCUIT



BERNARDINO GABRIEL-PEREZ; et al.,                  No. 10-71817

               Petitioners,                        Agency Nos. A076-356-337
                                                               A076-356-260
  v.                                                           A072-402-852

ERIC H. HOLDER, Jr., Attorney General,
                                                   MEMORANDUM *
               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                              Submitted February 21, 2012 **

Before:        FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

       Bernardino Gabriel-Perez, Venancia Perez De Gabriel and Eduardo Gabriel-

Perez, natives and citizens of Mexico, petition for review of the Board of

Immigration Appeals’ order denying their motion to reopen proceedings based on

ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252.


          *
             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).
Reviewing for abuse of discretion, Ghahremani v. Gonzales, 498 F.3d 993, 997

(9th Cir. 2007), we deny the petition for review.

      The agency did not abuse its discretion in denying petitioners’ motion to

reopen because the motion was filed nearly five years after their deportation order

became final, see 8 C.F.R. § 1003.2(c)(2), 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 available “when a

petitioner is prevented from filing because of deception, fraud, or error, as long as

the petitioner acts with due diligence”).

      PETITION FOR REVIEW DENIED.




                                            2                                   10-71817
