
    Mario Franco ARTEAGA; Isabel Mendoza-Torres, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
    No. 10-71367.
    United States Court of Appeals, Ninth Circuit.
    
      Submitted July 12, 2011.
    
    Filed July 22, 2011.
    Nicomedes E. Suriel, Supervisory, Law Offices of Nicomedes E. Suriel, Phoenix, AZ, for Petitioner.
    Chief Counsel Ice, Office of the Chief Counsel Department of Homeland Security, San Francisco, CA, OIL, Julia Tyler, Esquire, Jennifer Parker Levings, Senior Litigation Counsel, U.S. Department of Justice, Washington, DC, for Respondent.
    Before: SCHROEDER, ALARCÓN, and LEAYY, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Mario Franco Arteaga and Isabel Mendoza-Torres, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s decision denying their motion to reopen removal proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo claims of due process violations. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.

The BIA did not abuse its discretion in denying petitioners’ motion as untimely where the motion was filed nearly five years after their removal order became final, see 8 C.F.R. § 1003.23(b)(4)(iii)(l) (an in absentia deportation order may be rescinded where failure to appear is due to exceptional circumstances, provided a motion to reopen is filed within 180 days of the final administrative order), and petitioners failed to establish grounds for equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling available “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence”); see also Fajardo v. INS, 300 F.3d 1018, 1022 (9th Cir.2002). It follows that petitioners’ due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error and prejudice for a petitioner to prevail on a due process claim).

PETITION FOR REVIEW DENIED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     