                                                                           FILED
                              NOT FOR PUBLICATION                           MAR 01 2010

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




                               FOR THE NINTH CIRCUIT



 GAYANE MADATIAN; VAHE                             No. 06-75372
 GHARAGUZIAN; KRISTINE
 MADATIAN,                                         Agency Nos. A073-915-871
                                                               A073-915-872
               Petitioners,                                    A073-915-863

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

               Respondent.



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

                              Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Gayane Madatian, her son Vahe Gharaguzian, and her sister Kristine

Madatian, citizens of Armenia, petition for review of the Board of Immigration



          *
             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).

RB/Research
Appeals’ (“BIA”) order denying their motion to reopen deportation proceedings

based on 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. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny the

petition for review.

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

reopen as untimely because the motion was filed more than 8 years after the BIA’s

May 23, 1997, order dismissing their appeal. See 8 C.F.R. § 1003.2(c)(2). The

BIA acted within its discretion in determining that the evidence submitted with the

motion to reopen failed to establish the due diligence required to warrant tolling of

the motions deadline. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003)

(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).

       Petitioners’ remaining contentions lack merit.

       Petitioners’ motion for extension of time to file the reply brief is granted.

The clerk shall file the reply brief received on March 4, 2008.

       PETITION FOR REVIEW DENIED.




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