                                                                            FILED
                              NOT FOR PUBLICATION                            APR 19 2010

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




                              FOR THE NINTH CIRCUIT



ANTONIO VALENZUELA CRUZ; et al.,                  No. 07-73985

               Petitioners,                       Agency Nos. A079-540-031
                                                              A079-540-032
  v.                                                          A079-540-033
                                                              A079-540-034
ERIC H. HOLDER Jr., Attorney General,

               Respondent.                        MEMORANDUM *



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

                               Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       Antonio Valenzuela Cruz, Maria Guadalupe Teran Ramirez, and two of their

children, natives and citizens of Mexico, petition for review of the Board of

Immigration Appeals’ (“BIA”) order denying their motion to reopen based on



          *
             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).
ineffective assistance of counsel. We have jurisdiction pursuant to 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), and we deny the petition for

review.

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

reopen as untimely because petitioners filed the motion more than three years after

the BIA’s February 24, 2004, removal order, see 8 C.F.R. § 1003.3(c)(2), and

petitioners failed to establish that they acted with the due diligence required for

equitable tolling, see Iturribarria, 321 F.3d at 897 (equitable tolling is available to

a petitioner who is prevented from filing due to deception, fraud or error, and

exercises due diligence in discovering such circumstances); cf. Ghahremani v.

Gonzales, 498 F.3d 993, 1000 (9th Cir. 2007).

      PETITION FOR REVIEW DENIED.




                                           2                                      07-73985
