Gayane MADATIAN; Vahe Gharaguzian; Kristine Madatian, Petitioners, v. Eric H. HOLDER Jr., Attorney General, Respondent, 368 F. App'x 781

MEMORANDUM Gayane Madatian, her son Vahe Ghara-guzian, and her sister Kristine Madatian, citizens of Armenia, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen deportation proceedings based on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.2005). We deny 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 8 years after the BIA’s May 23, 1997, order dismissing their appeal. See 8 C.F.R. § 1003.2(c)(2). The BIA acted within its discretion in determining that the evidence submitted with the motion to reopen failed to establish the due diligence required to warrant tolling of the motions deadline. See Iturribarria v.

INS, 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling is available to a petitioner who is prevented from filing due to deception, fraud or error, and exercises due diligence in discovering such circumstances). Petitioners’ remaining contentions lack merit. Petitioners’ motion for extension of time to file the reply brief is granted. The clerk shall file the reply brief received on March 4, 2008. PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.