Zavala

MEMORANDUM *

Eva Cristobal-Zavala, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) denial of her motion to reopen an appeal that the BIA had previously dismissed as untimely. We have jurisdiction pursuant to 8 *596 U.S.C. § 1252 . We review the BIA’s denial of a motion to reopen a removal proceeding for an abuse of discretion. Socop-Gonzalez v. INS, 272 F.3d 1176, 1187 (9th Cir.2001). We grant the petition and remand to the BIA.

The record demonstrates that, contrary to the BIA’s finding, Cristobal-Zavala did “set out ... when she learned that her appeal had been dismissed as untimely.” Cristobal-Zavala’s declaration stated that upon “receipt of the Respondent’s Brief written by Cindy S. Ferrier of the Office of Immigration Litigation” filed on December 11, 2002, her husband “explained to me what happened based on the Brief.” This averment informed the BIA of the time when she was alerted to the fact that her appeal may have been dismissed as untimely, although she remained unaware that the notary had committed fraud.

Moreover, contrary to the BIA’s finding, Cristobal-Zavala did in fact “set out when she engaged current counsel.”…