Elvin Francisco Gramajo; Esmeralda Del Rocio Gramajo 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.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELVIN FRANCISCO GRAMAJO;
ESMERALDA DEL ROCIO GRAMAJO,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 07-74609
Agency Nos. A095-180-663
A095-180-664
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 12, 2011
San Francisco, California
Before: HUG, KLEINFELD, and W. FLETCHER, Circuit Judges.
Elvin and Esmeralda Gramajo petition for review of the Bureau of
Immigration Appeal’s (“BIA”) denial of their motion to reopen. We have
jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition.
FILED
MAY 29 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2
The denial of a motion to reopen is reviewed for abuse of discretion. Cano-
Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002).
Petitioners’ motion is both number- and time- barred. 8 U.S.C. §§
1229a(c)(7)(A), 1229a(c)(7)(C)(i). They filed their first motion to reopen on
December 22, 2005, triggering the number bar. Their second motion to reopen was
filed almost three years after entry of the immigration judge’s decision, well
beyond the ninety-day filing deadline.
Even if petitioners were eligible for equitable tolling of these procedural
bars, see Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir. 2003), petitioners do
not have a basis for equitable tolling. Under Iturribarria, the ninety-day window
for equitable tolling begins to run when the immigrant meets with new counsel and
discovers the fraud, deceit, or error. Id. at 899.
Petitioners allege that they did not know of their former counsel’s fraudulent
conduct until meeting with new counsel in “about the middle of March” 2007.
Thus, the new ninety-day deadline, triggered by equitable tolling, was in mid-June.
The petitioners’ second motion to reopen was filed on June 22, 2007. Nothing in
petitioners’ motion or the briefs addresses this delay in filing. In fact, the brief
suggests that the petitioners discovered the full extent of what happened in
February 2007.
PETITION DENIED.

-- 2 of 2 --