BERNARDINO GABRIEL-PEREZ V. ERIC HOLDER, JR., No. 10-71817 (9th Cir. 2012)

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FILED MAR 01 2012 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT BERNARDINO GABRIEL-PEREZ; et al., Petitioners, No. 10-71817 Agency Nos. A076-356-337 A076-356-260 A072-402-852 v. ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM * Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 21, 2012 ** Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges. Bernardino Gabriel-Perez, Venancia Perez De Gabriel and Eduardo GabrielPerez, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals order denying their motion to reopen proceedings based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. * 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). Reviewing for abuse of discretion, Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007), we deny the petition for review. The agency did not abuse its discretion in denying petitioners motion to reopen because the motion was filed nearly five years after their deportation order became final, see 8 C.F.R. § 1003.2(c)(2), and petitioners failed to establish that they acted with the due diligence required for equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (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 ). PETITION FOR REVIEW DENIED. 2 10-71817

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