Harun HARUNI; et al., Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent, 176 F. App'x 811

MEMORANDUM Harun Haruni, and his wife and son, natives and citizens of Albania, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen removal proceedings due to ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we deny the petition for review. Petitioners filed their motion to reopen over one year after the BIA issued its final order.

The BIA did not abuse its discretion in refusing to apply equitable tolling in this case because Petitioners did not demonstrate due diligence in pursuing their ineffective assistance of counsel claim. See id. at 897 (holding that equitable tolling applies “during periods 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 deception, fraud, or error”). Accordingly, the BIA did not abuse its discretion in denying Petitioners’ motion as untimely. See 8 C.F.R. § 1003.2(c)(2). PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.