Vardan Petrosyan, et al v. Eric H. Holder Jr., No. 08-74335 (9th Cir. 2011)

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FILED JAN 06 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT VARDAN PETROSYAN; et al., Petitioners, No. 08-74335 Agency Nos. A076-357-482 A076-357-483 A076-357-484 v. ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM * Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 14, 2010 ** Before: GOODWIN, WALLACE, and THOMAS, Circuit Judges. Vardan Petrosyan and family, natives and citizens of Armenia, petition for review of the Board of Immigration Appeals ( BIA ) order denying their motion to reopen based on ineffective assistance of counsel. We have jurisdiction * 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). pursuant to 8 U.S.C. § 1252. Reviewing for abuse of discretion, Singh v. Gonzales, 491 F.3d 1090, 1095 (9th Cir. 2007), we deny in part and grant in part the petition for review. The BIA did not abuse its discretion in denying petitioners motion to reopen as untimely because the motion was filed more than six years after the BIA s June 11, 2002, order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2) (motion to reopen must generally be filed within 90 days of the final administrative order), and petitioners failed to establish grounds for equitable tolling, see Singh, 491 F.3d at 1096-97. Because the BIA failed to address petitioners request that the BIA exercise its sua sponte authority to reopen proceedings, we remand for the BIA to consider petitioners request in the first instance. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007). Each party shall bear its own costs for this petition for review. PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED. 2 08-74335

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