Hessabi

MEMORANDUM **

Petitioners appeal the Board of Immigration Appeals’ (“BIA”) denial of their motion to reissue an adverse decision that petitioners argue they never received. We have jurisdiction under 8 U.S.C. § 1252 , and we grant the petition and remand for an evidentiary hearing.

We reject respondent’s argument that we have no jurisdiction to consider this appeal because it was a request to the BIA to reopen the case sua sponte. The BIA, upon receipt of the motion, sent petitioners a “Filing Receipt for Motion to Reopen or Motion to Reconsider” and accepted the $110 filing fee required for such motions. Because the BIA appears in fact to have treated the motion as one to reopen or reconsider, we will treat it as such. See Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir.1999).

We also reject respondent’s argument that we cannot review this appeal because the only final order at issue is the underlying decision that petitioners failed to appeal within the required statutory deadline. The filing of a motion to reconsider does not toll the deadline to appeal from a final order of deportation. Stone v. INS, 514 U.S. 386, 405 , 115 S.Ct. 1537 , 131 L.Ed.2d 465 (1995). However,…