                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 25 2011

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




                              FOR THE NINTH CIRCUIT



VICTORIA DEL CARMEN MONTIEL                       No. 07-70656
CRUZ; GUILLERMO CUELLAR
CARRILLO,                                         Agency Nos. A078-643-380
                                                              A027-712-756
              Petitioners,

  v.                                              MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                             Submitted February 15, 2011 **
                               San Francisco, California

Before: SCHROEDER and THOMAS, Circuit Judges, and BENNETT, District
Judge.***




        *
             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).
        ***
             The Honorable Mark W. Bennett, District Judge for the United States
District Court for the Northern District of Iowa, sitting by designation.
      Victoria del Carmen Montiel Cruz and her spouse Guillermo Cuellar Carrillo

are natives and citizens of Mexico. They petition for review of the Board of

Immigration Appeals’ denial, as untimely, of their motion to reopen based on their

claim of ineffective assistance of counsel.

      Petitioners’ motion to reopen was filed late; the final administrative decision

was rendered on February 11, 2005 and Petitioners filed their motion to reopen on

November 3, 2006. See 8 C.F.R. § 1003.2(c)(2) (requiring filing of a motion to

reopen “no later than 90 days after the date on which the final administrative

decision was rendered in the proceeding sought to be reopened”). Equitable tolling

does not apply since Petitioners did not demonstrate the required due diligence.

See Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1193 (9th Cir. 2001) (en banc)

(explaining that equitable tolling applies when “despite all due diligence, the party

invoking equitable tolling is unable to obtain vital information bearing on the

existence of the claim”) (citations, internal quotation marks, and brackets omitted).

The hearing before the Immigration Judge took place in December 2003. At that

time, Petitioners knew of what counsel did that they now claim was ineffective.

They thus had the information necessary to bring their ineffective assistance of

counsel claim in 2003, but only filed their motion to reopen in 2006, more than a

year after the administrative decision.


                                          2
Petition DENIED.




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