                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 22 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



JULIETA SHAHINYAN,                               No. 08-72128

               Petitioner,                       Agency No. A098-137-736

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

               Respondent.



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

                             Submitted March 12, 2013 **

Before:        PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.

       Julieta Shahinyan, a native of the former Soviet Union and citizen of

Georgia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order

denying her motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We




          *
             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).
review for abuse of discretion the denial of a motion to reopen, Avagyan v. Holder,

646 F.3d 672, 674 (9th Cir. 2011), and we grant the petition for review.

      The BIA abused its discretion in denying Shahinyan’s motion to reopen as

untimely even though Shahinyan explained in her affidavit that the BIA dismissed

her appeal on December 13, 2007, she did not obtain her file from her

uncooperative former counsel until January 22, 2008, did not learn of former

counsel’s ineffective assistance until February 6, 2008 when she met with current

counsel and learned from current counsel that she needed to obtain further

documents, and her current counsel express mailed her motion to the BIA one day

before it was due. See 8 C.F.R. § 1003.2(c)(2) (motion to reopen generally must be

filed within 90 days of the final administrative order); see Avagyan, 646 F.3d at

679 (equitable tolling of the filing deadline available until petitioner definitively

learns of the harm resulting from counsel’s deficiency or obtains vital information

bearing on the existence of his claim).

      PETITION FOR REVIEW GRANTED; REMANDED.




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