                                                                           FILED
                              NOT FOR PUBLICATION                           APR 15 2011

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




                              FOR THE NINTH CIRCUIT



JAVIER MENDOZA-VALENCIA;                          No. 09-72242
SILVIA MENDOZA,
                                                  Agency Nos. A077-110-774
               Petitioners,                                   A077-110-773

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

               Respondent.



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

                               Submitted April 5, 2011 **

Before:        B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

       Javier Mendoza-Valencia and Silvia Mendoza, natives and citizens of

Mexico, petition pro se 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 by 8 U.S.C. § 1252. We review for abuse of

          *
             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).
discretion the denial of a motion to reopen. 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 because it was filed more than four years after the BIA’s May 28, 2004,

order, see 8 C.F.R. § 1003.2(c)(2), and petitioners failed to demonstrate that they

acted with the due diligence required for equitable tolling, see Iturribarria v. INS,

321 F.3d 889, 899 (9th Cir. 2003) (equitable tolling available “when a petitioner is

prevented from filing because of deception, fraud, or error, as long as the petitioner

acts with due diligence”).

      We lack jurisdiction to consider petitioners’ challenge to the BIA’s May 28,

2004, order because this petition is not timely as to that order. See 8 U.S.C.

§ 1252(b)(1); Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003).

      Petitioners’ remaining contentions are unavailing.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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