Fanny Arteaga, et al v. Eric H. Holder Jr., No. 08-75235 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 01 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT FANNY RUTH ARTEAGA; et al., Petitioners, No. 08-75235 Agency Nos. A075-667-561 A075-664-178 A075-667-562 A075-667-563 v. ERIC H. HOLDER, Jr., Attorney General, Respondent. MEMORANDUM * On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges. Fanny Ruth Arteaga and family, natives and citizens of Colombia, petition for review of the Board of Immigration Appeals ( BIA ) order denying their motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for * 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). abuse of discretion, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), we deny the petition for review. The BIA did not abuse its discretion in denying petitioners motion to reopen because the successive motion to reopen was filed more than five years after the BIA s March 11, 2003, order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2) (motion to reopen generally must be filed within 90 days of the final administrative order), and petitioners failed to establish grounds for equitable tolling, see Iturribarria, 321 F.3d at 897 (equitable tolling available when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence ). Respondent s motion to strike is denied as moot. PETITION FOR REVIEW DENIED. 2 08-75235

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