                                                                            FILED
                              NOT FOR PUBLICATION                            JUN 03 2010

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




                              FOR THE NINTH CIRCUIT



RESHAM SINGH; RANJIT SINGH                       No. 07-71652
RANA; KAMAL PREET KAUR;
BALBIR KAUR,                                     Agency Nos. A095-413-662
                                                             A095-413-663
               Petitioners,                                  A095-413-664
                                                             A095-413-665
  v.

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

               Respondent.



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

                              Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Resham Singh and his family, natives and citizens of India, petition for

review of the Board of Immigration Appeals’ (“BIA”) order denying their motion

to reopen based on ineffective assistance of counsel. Our jurisdiction is governed


          *
             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).
by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to

reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny in part

and dismiss in part the petition for review.

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

reopen as untimely where the motion was filed more than two years after the BIA’s

September 17, 2004, order dismissing petitioners’ appeal, see 8 C.F.R.

§ 1003.2(c)(2), and petitioners failed to establish the late filing was due to

deception, fraud or error of former counsel to warrant equitable tolling, see

Iturribarria, 321 F.3d at 897.

      We lack jurisdiction to review the BIA’s decision not to invoke its sua

sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159

(9th Cir. 2002).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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