                                                                           FILED
                              NOT FOR PUBLICATION                           APR 26 2011

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




                              FOR THE NINTH CIRCUIT



SERGIO VARGAS CANO and MARIA                      No. 09-71138
DEL PILAR VARGAS,
                                                  Agency Nos. A075-728-732
               Petitioners,                                   A075-728-733

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

               Respondent.



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

                               Submitted April 5, 2011 **

Before:        B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

       Sergio Vargas Cano and Maria Del Pilar Vargas, natives and citizens of

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

denying their motion to reopen removal proceedings. We have jurisdiction under 8

U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen,

          *
             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).
and de novo ineffective assistance of counsel claims, Mohammed v. Gonzales, 400

F.3d 785, 791-92 (9th Cir. 2005), and we deny the petition for review.

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

reopen as untimely because it was filed more than three years after the BIA’s final

order of removal, see 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed

within 90 days of final order of removal), and petitioners did not show they were

entitled to equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.

2003).

         Petitioners’ contention that the BIA erred by failing to address their statutory

right to counsel claim is unavailing because the BIA denied the motion on

timeliness grounds.

         PETITION FOR REVIEW DENIED.




                                             2                                    09-71138
