Reynaldo Dela Cruz Cruz; Erlinda Saguiguit Cruz v. ERIC H. HOLDER Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
KS/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REYNALDO DELA CRUZ CRUZ;
ERLINDA SAGUIGUIT CRUZ,
Petitioners,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-72161
Agency Nos. A072-512-224
A072-514-749
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 11, 2010**
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Reynaldo Dela Cruz Cruz and Erlinda Saguiguit Cruz, natives and citizens
of the Philippines, petition for review of the Board of Immigration Appeals’
(“BIA”) order denying their motion to reopen based on ineffective assistance of
FILED
JAN 21 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse
of discretion the denial of a motion to reopen, Mohammed v. Gonzales, 400 F.3d
785, 791 (9th Cir. 2005), and we deny the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen as untimely because the motion was filed more than two years after the
BIA’s June 23, 2004, order dismissing their appeal, see 8 C.F.R. § 1003.2(c)(2),
and petitioners failed to establish that they acted with the due diligence required for
equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003)
(equitable tolling is available to a petitioner who is prevented from filing due to
deception, fraud or error, and exercises due diligence in discovering such
circumstances).
The BIA’s failure to address petitioners’ request for an additional period of
voluntary departure was harmless error. See 8 U.S.C. § 1229c(b)(1) (Attorney
General may permit voluntary departure if immigration judge enters order granting
that relief at the conclusion of removal proceedings).
In light of our disposition, we do not reach petitioners’ remaining
contentions.
PETITION FOR REVIEW DENIED.

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