Zaidi

MEMORANDUM ***

Zaighum Hussain Zaidi, a native and citizen of Pakistan, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of a motion to reopen his proceedings, in which he applied for asylum, withholding of deportation, and relief under the Convention Against Torture. We have jurisdiction pursuant to former 8 U.S.C. § 1105a(a). See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). Reviewing for abuse of discretion, see Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000), we grant the petition and remand for further proceedings.

The BIA abused its discretion in concluding that the late filing of Zaidi’s appeal was not excused by ineffective assistance of prior counsel Alan Harris, and instead constituted a lack of due diligence by Zai *108 di. The BIA should have treated Zaidi’s “motion to accept late filing of appeal” as a motion to reopen. See Iturribarria v. INS, 321 F.3d 889, 891 (9th Cir.2003) (“Where the facts surrounding allegedly ineffective representation by counsel were unavailable to the petitioner at an earlier stage of the administrative process, motions before the BIA based on claims of ineffective assistance of counsel are properly deemed…