Grigorian

MEMORANDUM ***

Vardoui Grigorian, a native and citizen of Armenia, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal from an Immigration Judge’s (“IJ”) denial of her motion to reopen. We have jurisdiction pursuant to former 8 U.S.C. § 1105a. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). We grant the petition for review and remand for further proceedings.

Grigorian contends that her former counsel misled her into foregoing her asylum claim and assured her that she would not have to leave the United States if granted voluntary departure. Provided that Grigorian acted with due diligence in filing her motion to reopen, she could qualify for equitable tolling under these circumstances. See Iturribama v. INS, 321 F.3d 889, 897 (9th Cir.2003). The IJ in this case, however, rendered her decision to deny the motion to reopen based in part on a finding that Grigorian herself requested voluntary departure instead of asylum before “the [original IJ] gave time off the record for the attorney and the respondent to discuss the respondent’s decision.”

The BIA held that Grigorian’s untimely motion to reopen was not excused by equitable tolling.…