                                                                           FILED
                              NOT FOR PUBLICATION                           MAY 05 2011

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




                              FOR THE NINTH CIRCUIT



MISAK TERYAN; MARI TERYAN,                        No. 08-75183

               Petitioners,                       Agency Nos. A095-191-276
                                                              A095-191-277
  v.

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

               Respondent.



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

                              Submitted April 20, 2011 **

Before:        RYMER, THOMAS, and PAEZ, Circuit Judges.

       Misak Teryan and Mari Teryan, natives of Greece and citizens of Armenia,

petition for review of the Board of Immigration Appeals’ (“BIA”) order denying

their motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review

for abuse of discretion the denial of a motion to reopen, Singh v. Gonzales, 491


          *
             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).
F.3d 1090, 1095 (9th Cir. 2007), and we deny in part and grant in part the petition

for review.

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

reopen as untimely because the motion was filed more than four years after the

BIA’s February 24, 2004, order dismissing the underlying appeal, see 8 C.F.R.

§ 1003.2(c)(2) (motion to reopen must generally be filed within 90 days of the final

administrative order), and petitioners failed to establish grounds for equitable

tolling, see Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir. 2003).

      Petitioners’ contention that an immigration consultant they knew was not a

lawyer provided them with ineffective assistance of counsel is foreclosed. See

Hernandez v. Mukasey, 524 F.3d 1014, 1020 (9th Cir. 2008) (holding that knowing

reliance upon the advice of a non-attorney cannot support a claim for ineffective

assistance of counsel in a removal proceeding).

      Because the BIA failed to address petitioners’ request that it exercise its sua

sponte authority to reopen proceedings, we remand for the BIA to consider

petitioners’ request in the first instance. See Montes–Lopez v. Gonzales, 486 F.3d

1163, 1165 (9th Cir. 2007).

      Each party shall bear its own costs for this petition for review.

      PETITION FOR REVIEW DENIED in part; GRANTED in part.


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