                                                                            FILED
                              NOT FOR PUBLICATION                            MAR 25 2010

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




                              FOR THE NINTH CIRCUIT



 MARIA TERESA ROMERO;                            No. 07-73152
 SERVANDO ROMERO,
                                                 Agency Nos. A079-520-825
               Petitioners,                                  A079-520-826

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

               Respondent.



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

                              Submitted March 16, 2010 **

Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Maria Teresa Romero and Servando Romero, natives and citizens of

Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order

denying their motion to reopen removal proceedings conducted in absentia. We

          *
             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).

KS/Research
have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion

the denial of a motion to reopen, and de novo questions of law, including claims of

ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92

(9th Cir. 2005). We deny in part and grant in part the petition for review, and

remand for further proceedings.

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

reopen as untimely as it pertains to their former counsel, because the motion was

filed more than five years after the March 6, 2002, in absentia order, see 8 U.S.C.

§ 1229a(b)(5)(C)(i) (a motion seeking to reopen and rescind an in absentia removal

order based on exceptional circumstances must be filed within 180 days), and

petitioners failed to establish they acted with due diligence in bringing their

ineffective assistance claim against their former counsel, see Iturribarria v. INS,

321 F.3d 889, 897 (9th Cir. 2003) (equitable tolling is available to petitioner who is

prevented from filing due to deception, fraud or error, and exercises due diligence

in discovering such circumstances).

       The BIA abused its discretion in finding that petitioners’ motion fails to state

specific complaints of fraud or hardship as a result of their immigration

consultant’s conduct. In their motion to reopen, petitioners contended that they

were prima facie eligible for cancellation of removal and that their consultant filed


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numerous frivolous motions, thereby depriving them the opportunity to have their

in absentia order rescinded and their proceedings reopened. We therefore remand

for the BIA to reconsider petitioners’ claim against their immigration consultant in

light of this discrepancy.

       Each party shall bear its own costs for this petition for review.

   PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.




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