                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                    UNITED STATES COURT OF APPEALS                     October 30, 2012

                                                                     Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                        Clerk of Court


MIHIRETAB TESHOME JOBIRA;
BEZA TESHOME JOBIRA,

             Petitioners,
                                                           No. 11-9561
v.                                                     (Petition for Review)

ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before GORSUCH, Circuit Judge, BRORBY, Senior Circuit Judge, and HOLMES,
Circuit Judge.



      Mihiretab Teshome Jobira and Beza Teshome Jobira are natives and citizens of

Ethiopia who overstayed their visitor visas. An Immigration Judge denied their

applications for asylum and the Board of Immigration Appeals (BIA) dismissed their

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
appeal. Dissatisfied, the Jobiras retained new counsel and filed a petition for review,

which we denied. Jobira v. Holder, 438 F. App’x 731, 735 (10th Cir. 2011)

(unpublished). Still dissatisfied, the Jobiras filed a motion to reopen deportation

proceedings eight months after the BIA’s dismissal of their appeal. The BIA denied

the motion as untimely and concluded that equitable tolling of the filing deadline was

not warranted. Now again before us, the Jobiras file a petition for review of the

BIA’s decision to deny their motion to reopen.

      A motion to reopen must be filed no later than ninety days after “the final

administrative decision was rendered in the proceeding sought to be reopened.”

8 C.F.R. § 1003.2(c)(2). Having filed this motion far more than ninety days after the

BIA’s dismissal, the Jobiras look to the doctrine of equitable tolling for help. And, in

fact, the ninety day period may be equitably tolled only if (1) their constitutional

right to due process has been violated by their counsel’s conduct and (2) they have

“exercised due diligence in pursuing the case during the period” they seek to toll.

Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005). The BIA’s assessment

whether equitable tolling is appropriate under this standard is something we review

for abuse of discretion. Id.

      We see none in this case. To be sure, the Jobiras charge the BIA with failing

to explain adequately the basis for its denial of equitable tolling, and they argue that

the standard for tolling is, in fact, met. Neither charge, however, bears scrutiny. Our

review of the record confirms that the BIA clearly and correctly explained that the


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Jobiras didn’t establish prejudice flowing from their counsel’s alleged conduct. The

BIA observed that the Jobiras motion to reopen did not include with it any of the

material they allege would have made a difference in their case. Specifically, the

Jobiras did not attach an affidavit from their brother — who the Jobiras allege would

have offered helpful testimony — despite the fact that he was living with the Jobiras

at the time of the merits hearing. Neither did the Jobiras identify any of the allegedly

helpful legal authority they claim prior counsel should have presented to the BIA on

appeal. It is for these clearly explained reasons the BIA concluded the Jobiras failed

to carry their burden of prejudice and we see nothing to indicate the BIA abused its

discretion in any way.

      The petition for review is denied.


                                                 Entered for the Court


                                                 Neil M. Gorsuch
                                                 Circuit Judge




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