Hernandez

MEMORANDUM **

Roberto Mejia Hernandez and his wife, Rocío Erasma Ramirez-Solis, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from the Immigration Judge’s (“IJ”) order denying their motion to reopen removal proceedings based on the ineffective assistance of current counsel. Reviewing for abuse of discretion, Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir.2005), we deny the petition for review.

The record shows that on October 16, 2003, the BIA served notice on current counsel of the decision dismissing Petitioners’ appeal, due to current counsel’s failure to file a timely notice of appeal, and on January 29, 2004 counsel moved to reopen. See 8 C.F.R. § 1003.23 (b)(1) (setting 90-day filing deadline for motions to reopen before the IJ). The motion did not attach any evidence to support counsel’s contention that Petitioners were unaware of counsel’s ineffective assistance until they received the December 29, 2003 letter from Immigration and Customs Enforcement, ordering them to report for removal. See 8 C.F.R. § 1003.23 (b)(3) (a motion to reopen shall be supported by affidavits and other evidentiary…