                                                                           FILED
                               NOT FOR PUBLICATION                          SEP 17 2012

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




                               FOR THE NINTH CIRCUIT



MARGARITA FRANCISCA CORCINO-                       No. 11-71181
OSORNIO, a.k.a. Margarita Corsena
Ocenario; PEDRO BARRERA, a.k.a.                    Agency Nos. A098-460-177
Pedro Parrera,                                     Agency Nos. A098-460-178

               Petitioners,
                                                   MEMORANDUM *
  v.

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                              Submitted September 10, 2012 **

Before:        WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       Margarita Francisca Corcino-Osornio and Pedro Barrera, natives and

citizens of Mexico, petition for review of the Board of Immigration Appeals’




          *
             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).
(“BIA”) order denying their motion to reopen removal proceedings. Our

jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the

denial of a motion to reopen, and review de novo questions of law. Mohammed v.

Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). 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 they filed the motion more than thirteen months after

their final order of removal, see 8 C.F.R. § 1003.2(c)(2) (motion to reopen must be

filed within 90 days of final order), and failed to show the due diligence required

for equitable tolling of the filing deadline, see Avagyan v. Holder, 646 F.3d 672,

678-80 (9th Cir. 2011) (equitable tolling is available to a petitioner who establishes

that he suffered from deception, fraud or error, and exercised due diligence in

discovering such circumstances). It follows that petitioners’ due process claim

fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (petitioner must show

error and prejudice to establish a due process violation).

      We lack jurisdiction to review petitioners’ contention that their second

attorney provided ineffective assistance of counsel because they failed to raise that

claim before the BIA, and thereby failed to exhaust their administrative remedies.




                                           2                                     11-71181
See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (no jurisdiction to

review legal claims not presented before the BIA).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                         3                                      11-71181
