Pablo Deloya v. Eric Holder, Jr.

MEMORANDUM

Pablo Rodriguez Deloya and Irma Rodriguez, both natives and citizens of Mexico, petition pro se for review of an order of the Board of Immigration Appeals (“BIA”) denying their motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252 . We review for abuse of discretion the BIA’s denial of a motion to reopen and for substantial evidence the BIA’s factual determinations made in the course of the decision. Nehad v. Mukasey, 535 F.3d 962, 966-67 (9th Cir.2008). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion by denying petitioners’ motion to reopen, where petitioners filed the motion more than five years after issuance of the BIA’s final order of removal, see 8 U.S.C. § 1229a(c)(7)(C)(i), and petitioners did not demonstrate that they had received ineffective assistance of counsel during their appeal to the BIA such as would warrant equitable tolling of the filing deadline applicable to motions to reopen, see Iturribarria v. INS, 321 F.3d 889, 898 (9th Cir.2003) (holding that “equitable tolling is available” only if “the ineffective performance” of an alien’s attorney caused “an essential action…