                                                                           FILED
                              NOT FOR PUBLICATION                           JAN 21 2010

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




                              FOR THE NINTH CIRCUIT



 REYNALDO DELA CRUZ CRUZ;                         No. 07-72161
 ERLINDA SAGUIGUIT CRUZ,
                                                  Agency Nos. A072-512-224
               Petitioners,                                   A072-514-749

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

               Respondent.



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

                              Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Reynaldo Dela Cruz Cruz and Erlinda Saguiguit Cruz, natives and citizens

of the Philippines, petition for review of the Board of Immigration Appeals’

(“BIA”) order denying their motion to reopen based on ineffective assistance of

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

KS/Research
counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse

of discretion the denial of a motion to reopen, Mohammed v. Gonzales, 400 F.3d

785, 791 (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 the motion was filed more than two years after the

BIA’s June 23, 2004, order dismissing their appeal, 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 is available to a petitioner who is prevented from filing due to

deception, fraud or error, and exercises due diligence in discovering such

circumstances).

       The BIA’s failure to address petitioners’ request for an additional period of

voluntary departure was harmless error. See 8 U.S.C. § 1229c(b)(1) (Attorney

General may permit voluntary departure if immigration judge enters order granting

that relief at the conclusion of removal proceedings).

       In light of our disposition, we do not reach petitioners’ remaining

contentions.

       PETITION FOR REVIEW DENIED.




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