Virgen v. Gonzales

MEMORANDUM ** Jesus Hernandez Virgen, and his wife, Zenaida Serrano de Hernandez, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen removal proceedings based upon ineffective assistance of their prior counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We review the denial of a motion to reopen for abuse of discretion, Iturri-barria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we deny the petition for review. The record reflects that the BIA’s decision of December 9, 2002, informed petitioners of their prior counsel’s suspension from the practice of law, yet petitioners did not file their motion to reopen until January 24, 2005. The BIA did not abuse its discretion by denying petitioners’ motion to reopen as untimely because petitioners failed to show they were entitled to equitable tolling. See id. at 897 (equitable *565 tolling applies “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering” the misconduct). PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.