Rusev

MEMORANDUM **

Rosen Alexandrov Rusev and Galina Yordanova Ruseva, natives and citizens of Bulgaria, petition for review of the Board of Immigration Appeals’ (“BIA”) orders denying their two motions to reopen, which were based on the alleged ineffective assistance of their prior counsel. We have jurisdiction under 8 U.S.C. § 1252 . We review for an abuse of discretion, see Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004), amended by 404 F.3d 1105 (9th Cir.2005), and we deny the petition for review.

The Rusevs concede that their motions were untimely as they were not filed within ninety days of the BIA’s August 13, 2003 order. See 8 C.F.R. § 1003.2 (c)(2). The BIA did not abuse its discretion in concluding the Rusevs are not entitled to equitable tolling of the ninety-day time limit because they failed to demonstrate they acted with due diligence after learning their prior counsel did not file a brief before the BIA. See Iturribarria v. INS, 321 F.3d 889, 898 (9th Cir.2003) (stating that the court recognizes equitable tolling of deadlines on motions to reopen when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts…