Julieta Shahinyan 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.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIETA SHAHINYAN,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-72128
Agency No. A098-137-736
MEMORANDUM*
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
FILED
MAR 22 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-72128 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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