Martinez-Fabela

MEMORANDUM ***

Lazaro Martinez-Fabela and his wife, Minerva Guerrero-Cervantes, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) denial of their motion to reopen following the BIA’s summary affirmance of the immigration judge’s (“IJ”) denial of their applications for cancellation of removal.

We have jurisdiction under 8 U.S.C. § 1252 . We review de novo claims of due process violations, Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000), and for abuse of discretion denials of a motion to reopen, de Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir.2004). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion when it denied petitioners’ motion to reopen as untimely because the motion was filed almost six months after the 90-day time limit had expired. See 8 C.F.R. § 1003.2 (c)(2) (requiring a motion to reopen to be filed within 90 days). Even if we were to accept petitioners’ equitable tolling argument, because they received actual notice of the BIA’s decision on April 15, 2003, their motion was still untimely as it was not filed until August 6, 2003, well after the 90-day time…