Victoria Mishustina 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NOT FOR PUBLICATION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
VICTORIA MISHUSTINA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 05-70513
Agency No. A077-427-431
ORDER AND MEMORANDUM *
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The memorandum disposition filed on August 18, 2010 is withdrawn.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.
FILED
NOV 13 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

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

-- 2 of 3 --

3
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.

-- 3 of 3 --