                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                             FOR THE NINTH CIRCUIT                          MAY 29 2012

                                                                        MOLLY C. DWYER, CLERK
ELVIN FRANCISCO GRAMAJO;                         No. 07-74609            U.S. COURT OF APPEALS

ESMERALDA DEL ROCIO GRAMAJO,
                                                 Agency Nos. A095-180-663
              Petitioners,                                   A095-180-664

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

              Respondent.


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

                     Argued and Submitted October 12, 2011
                            San Francisco, California


Before: HUG, KLEINFELD, and W. FLETCHER, Circuit Judges.

       Elvin and Esmeralda Gramajo petition for review of the Bureau of

Immigration Appeal’s (“BIA”) denial of their motion to reopen. We have

jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The denial of a motion to reopen is reviewed for abuse of discretion. Cano-

Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002).

      Petitioners’ motion is both number- and time- barred. 8 U.S.C. §§

1229a(c)(7)(A), 1229a(c)(7)(C)(i). They filed their first motion to reopen on

December 22, 2005, triggering the number bar. Their second motion to reopen was

filed almost three years after entry of the immigration judge’s decision, well

beyond the ninety-day filing deadline.

      Even if petitioners were eligible for equitable tolling of these procedural

bars, see Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir. 2003), petitioners do

not have a basis for equitable tolling. Under Iturribarria, the ninety-day window

for equitable tolling begins to run when the immigrant meets with new counsel and

discovers the fraud, deceit, or error. Id. at 899.

      Petitioners allege that they did not know of their former counsel’s fraudulent

conduct until meeting with new counsel in “about the middle of March” 2007.

Thus, the new ninety-day deadline, triggered by equitable tolling, was in mid-June.

The petitioners’ second motion to reopen was filed on June 22, 2007. Nothing in

petitioners’ motion or the briefs addresses this delay in filing. In fact, the brief

suggests that the petitioners discovered the full extent of what happened in

February 2007.

      PETITION DENIED.

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