                                                                              FILED
                            NOT FOR PUBLICATION                               NOV 13 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

VICTORIA MISHUSTINA,                             No. 05-70513

              Petitioner,                        Agency No. A077-427-431

  v.
                                                 ORDER AND MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted August 16, 2010**
                               Pasadena, California

Before: PREGERSON, NOONAN, and PAEZ, Circuit Judges.

                                      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       The memorandum disposition filed on August 18, 2010 is withdrawn.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.


        *
             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).
                                  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 Mishustina’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)(ii) (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


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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.




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