                                                                           FILED
                              NOT FOR PUBLICATION                           JUN 06 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


MARIANO ABUNDEZ MORAN;                           No. 10-73484
DOLORES GARCIA PERALTA;
GABRIELLE ABUNDEZ                                Agency Nos.         A075-473-727
HERNANDEZ; SERGIO ABUNDEZ                                            A075-489-386
HERNANDEZ; YANELY ABUNDEZ                                            A074-352-726
HERNANDEZ, AKA Yanelli Abundez                                       A074-352-727
Hernandez,                                                           A074-352-728

               Petitioners,
                                                 MEMORANDUM*
  v.

ERIC H. HOLDER, Jr., Attorney
General,

               Respondent.


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

                               Submitted June 4, 2014**
                                 Pasadena, California

Before:        KOZINSKI, Chief Judge, TROTT and CALLAHAN, Circuit
               Judges.

          *
             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).
                                                                                 page 2
      The Board of Immigration Appeals didn’t abuse its discretion in affirming

the Immigration Judge’s denial of petitioners’ untimely motion to reopen. See

Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008). Equitable tolling is

inappropriate in this case because petitioners didn’t exercise due diligence during

the six years they waited between the initial denial of their request for cancellation

of removal and their motion to reopen. See Iturribarria v. INS, 321 F.3d 889, 897

(9th Cir. 2003). Petitioners claim that they were not aware of counsel’s failure to

present certain evidence, but they were at the hearing and thus were aware of what

evidence the lawyer introduced. Their failure to retain new counsel or otherwise

ascertain the status of their appeal demonstrates a lack of diligence. See Singh v.

Gonzales, 491 F.3d 1090, 1096–97 (9th Cir. 2007).

      Even if they had been diligent, petitioners are unable to demonstrate that

their attorneys’ failure to introduce evidence of their son’s enlarged tonsils

prejudiced their case. See Mohammed v. Gonzales, 400 F.3d 785, 793–94 (9th

Cir. 2005). The enlarged tonsils don’t constitute an “exceptional and extremely

unusual hardship,” as required for cancellation of removal. 8 U.S.C.

§ 1229b(b)(1)(D).


      DENIED.
