Gevorgian

MEMORANDUM

Artur Gevorgian petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his motion to reopen based on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We review for abuse of discretion the denial of a motion to reopen, review findings of fact regarding counsel’s performance for substantial evidence, and review de novo claims of due process violations. Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir.2004). We deny in part and grant in part the petition for review and remand for further proceedings.

The agency properly concluded that Ge-vorgian’s former counsel’s advice to Gevor-gian to withdraw his application for asylum and to accept voluntary departure constituted a tactical decision. See Magallanes-Damian v. INS, 783 F.2d 931 , 934 (9th Cir.1986).

However, the agency abused its discretion in denying Gevorgian’s motion to reopen. Former counsel’s failure to file Ge-vorgian’s first motion to reopen with the IJ before Gevorgian’s voluntary departure period expired rendered the proceedings “so fundamentally unfair that [Gevorgian] was prevented…