Victoria Del Carmen Montiel Cruz; Guillermo Cuellar Carrillo 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 concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Mark W. Bennett, District Judge for the United States***
District Court for the Northern District of Iowa, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTORIA DEL CARMEN MONTIEL
CRUZ; GUILLERMO CUELLAR
CARRILLO,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 07-70656
Agency Nos. A078-643-380
A027-712-756
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2011**
San Francisco, California
Before: SCHROEDER and THOMAS, Circuit Judges, and BENNETT, District
Judge.***
FILED
FEB 25 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Victoria del Carmen Montiel Cruz and her spouse Guillermo Cuellar Carrillo
are natives and citizens of Mexico. They petition for review of the Board of
Immigration Appeals’ denial, as untimely, of their motion to reopen based on their
claim of ineffective assistance of counsel.
Petitioners’ motion to reopen was filed late; the final administrative decision
was rendered on February 11, 2005 and Petitioners filed their motion to reopen on
November 3, 2006. See 8 C.F.R. § 1003.2(c)(2) (requiring filing of a motion to
reopen “no later than 90 days after the date on which the final administrative
decision was rendered in the proceeding sought to be reopened”). Equitable tolling
does not apply since Petitioners did not demonstrate the required due diligence.
See Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1193 (9th Cir. 2001) (en banc)
(explaining that equitable tolling applies when “despite all due diligence, the party
invoking equitable tolling is unable to obtain vital information bearing on the
existence of the claim”) (citations, internal quotation marks, and brackets omitted).
The hearing before the Immigration Judge took place in December 2003. At that
time, Petitioners knew of what counsel did that they now claim was ineffective.
They thus had the information necessary to bring their ineffective assistance of
counsel claim in 2003, but only filed their motion to reopen in 2006, more than a
year after the administrative decision.

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Petition DENIED.

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