Mishustina v. Holder

ORDER AND MEMORANDUM ** ORDER The memorandum disposition filed on August 18, 2010 is withdrawn. The superseding disposition will be filed concurrently with this order. All pending petitions are denied as moot. DISPOSITION Victoria Mishustina petitions for review of a final decision of the Board of Immigration Appeals denying her motion to reopen a proceeding in which she was denied asylum and withholding of removal under the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3), and denying her motion for reinstatement of voluntary departure, pursuant to 8 U.S.C. § 1229c. We review the BIA’s order denying Mi-shustina’s motion to reopen for abuse of discretion; we review purely legal questions de novo. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We grant Mishustina’s petition for review and remand. The BIA abused its discretion in finding that Mishustina had not demonstrated a substantial likelihood that she would qualify for asylum, thereby qualifying for the regulatory exception to the normal requirement that a motion to reopen must be filed within ninety days after the final decision of the BIA. See 8 C.F.R. §§ 1003.2(c)(2), 1003.2(c)(3)(h) (exception to the 90-day requirement where there are “changed circumstances arising in the country of nationality ... if such evidence is material and was not available and could not have been discovered or presented at the previous hearing”). Mishustina’s petition for review also suggests that the BIA abused its discretion in refusing to reinstate her voluntary departure. We lack jurisdiction to review the BIA’s decision to grant or deny a request for voluntary departure. Garcia v. Ashcroft, 368 F.3d 1157, 1159 (9th Cir.2004) (order). We grant Mishustina’s petition for review and remand to the BIA with instructions to remand the case to the Immigration Court. GRANTED and REMANDED. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.