                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 06 2011

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




                            FOR THE NINTH CIRCUIT

GABRIELA OLVERA,                                 No. 08-74297

              Petitioner,                        Agency No. A095-301-373

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

              Respondent.


JOSE MARIANO OLVERA-                             No. 08-74298
SEGOVIANO,
                                                 Agency No. A095-301-372
              Petitioner,

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.

                      On Petition for Review of Orders of the
                          Board of Immigration Appeals

                            Submitted March 22, 2011 **


        *
             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).
Before: SKOPIL, FARRIS, and LEAVY, Circuit Judges.

       Jose Olvera-Segoviano and his former wife, Gabriela Olvera, natives and

citizens of Mexico, petition for review of final decisions issued by the Board of

Immigration Appeals (BIA) denying their motions to reopen removal proceedings.

The BIA determined the motions were not timely filed, the Olveras were not

entitled to equitable tolling, and their circumstances did not warrant sua sponte

reopening. We agree the motions were neither timely filed nor subject to equitable

tolling. We lack jurisdiction to review the BIA’s decision not to invoke its sua

sponte authority to reopen. Accordingly, we deny the petitions in part and dismiss

in part.

           A motion to reopen must generally be filed within 90 days of the final

administrative order of removal. Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th

Cir. 2007) (citing 8 U.S.C. § 1229a(c)(7)(C)(I)). The motions here were not timely

because they were filed nearly four years after the BIA’s initial decision. Although

a showing of ineffective assistance of counsel may permit late filing, see Singh v.

Gonzales, 491 F.3d 1090, 1096 (9th Cir. 2007), the Olveras’ claims of ineffective

representation had already been rejected by the BIA on direct appeal and again on

denial of reconsideration. We also rejected their ineffective assistance of counsel

claims and concluded the Olveras “failed to identify any error of fact or law in the



                                            -2-
BIA’s prior decision.” Olvera-Segoviano v. Keisler, 248 Fed.Appx 844 (2007 WL

2818457) (9th Cir. 2007).

        To the extent the Olveras now assert that a non-attorney who assisted them

initially and the attorney who aided them in filing their pro se appeal and motion for

reconsideration were also ineffective, we agree with the BIA that the Olveras were

not diligent in raising those claims. See Singh, 491 F.3d at 1096 (noting equitable

tolling requires the petitioner act with “due diligence”); see also Hernandez v.

Mukasey, 524 F.3d 1014, 1015-16 (9th Cir. 2008) (holding that “knowing reliance

upon the advice of a non-attorney cannot support a claim for ineffective assistance

of counsel in a removal proceeding”).

      The Olveras also contend they are entitled to reopening based on their newly

acquired eligibility for relief. But, as the BIA noted, such new circumstances do not

provide a basis for equitable tolling of the time period for filing a motion to reopen.

The BIA does have the authority in such instances, however, to grant reopening sua

sponte. See Sharma v. Holder, 633 F.3d 865, 874 (9th Cir. 2011) (citing 8 C.F.R. §

1003.2(a)). Nonetheless, we lack “jurisdiction to review the Board’s decision not to

invoke its sua sponte authority to reopen” a removal proceeding. Id.

      PETITIONS FOR REVIEW DENIED in part; DISMISSED in part.




                                          -3-
