Gramajo

MEMORANDUM

Elvin and Esmeralda Gramajo petition for review of the Bureau of Immigration Appeal’s (“BIA”) denial of their motion to reopen. We have jurisdiction under 8 U.S.C. § 1252 (a)(1), and we deny the petition.

The denial of a motion to reopen is reviewed for abuse of discretion. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002).

Petitioners’ motion is both number— and timebarred. 8 U.S.C. §§ 1229a(c)(7)(A), 1229a(c)(7)(C)(i). They filed their first motion to reopen on December 22, 2005, triggering the number bar. Their second motion to reopen was filed almost three years after entry of the immigration judge’s decision, well beyond the ninety-day filing deadline.

Even if petitioners were eligible for equitable tolling of these procedural bars, see Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir.2003), petitioners do not have a basis for equitable tolling. Under Iturribarria , the ninety-day window for equitable tolling begins to run when the immigrant meets with new counsel and discovers the fraud, deceit, or error. Id. at 899 .

Petitioners allege that they did not know of their former counsel’s fraudulent conduct until meeting with new counsel in “about the middle…