Mishustina

ORDER AND MEMORANDUM

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The memorandum disposition filed on August 18, 2010 is withdrawn.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

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 Mi-shustina’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)(h) (exception to…