USCA1 Opinion
August 4, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2324
LEOS KUBEC,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
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Before
Torruella, Selya and Stahl,
Circuit Judges.
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Leos Kubec on brief pro se.
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Frank W. Hunger, Assistant Attorney General, and Robert Kendall,
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Jr., Assistant Director, Office of Immigration Litigation, Civil
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Division, Department of Justice, on brief for respondent.
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Per Curiam. Petitioner Leos Kubec, a native and
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citizen of Czechoslovakia, has filed this petition for review
of the decision of the Board of Immigration Appeals (BIA).
The BIA dismissed his appeal from the decision of the
immigration judge as untimely.
I.
_
Petitioner entered the United States, in August
1989, as a nonimmigrant visitor for pleasure; he was
permitted to remain here until February 1990. However,
petitioner never left this country. As a result, the
Immigration and Naturalization Service (INS) issued an order
to show cause why petitioner should not be deported. In
response, petitioner filed applications for political asylum
and withholding of deportation.
A deportation hearing was held on March 21, 1991.
Petitioner admitted the facts in the show cause order and
conceded deportability. At the conclusion of the hearing,
the immigration judge rendered an oral decision; he denied
the applications for political asylum and withholding of
deportation. The judge determined that petitioner had failed
to demonstrate that he would be persecuted or had a well-
founded fear of persecution if returned to Czechoslovakia.
The immigration judge did grant petitioner's request for
voluntary departure in lieu of deportation. See 8 U.S.C.
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1254(e). The judge also informed petitioner that any appeal
to the BIA had to be filed by April 1, 1991.
II.
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8 C.F.R. 3.38(b) provides that the notice of
appeal "shall be filed with the Office of the Immigration
Judge having administrative control over the Record of
Proceeding within ten (10) calendar days after service of the
decision." A petitioner must use a specific form (at the
time, designated as Form EOIR-26) for the notice of appeal.
20 C.F.R. 3.3(a). Further, "a notice of appeal . . . shall
be accompanied by the appropriate fee specified by, and
remitted in accordance with, the provisions of 103.7 of
this chapter." See id. 3.3(b). Thus, to perfect an
___ ___
appeal, both Form EOIR-26 and a fee receipt must be presented
to the Office of the Immigration Judge.
Section 103.7(a) provides, in relevant part:
Any fee relating to any Executive Office
for Immigration Review proceeding shall
be paid to, and accepted by, any Service
office authorized to accept fees.
Payment of any fee under this section
does not constitute filing of the
document with the Office of the
Immigration Judge. The Service shall
return to the payer at the time of
payment both the receipt for any fee paid
and any documents submitted with the fee.
Where an appeal is not taken within the 10-day period, the
right to appeal is lost. See Da Cruz v. INS, 4 F.3d 721, 722
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(9th Cir. 1993); Matter of G.Z., 5 I. & N Dec. 295 (1953); 1
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-3-
C. Gordon & S. Mailman, Immigration Law and Procedure 3.05
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[4][a], at 3-53 (rev. ed. 1994).
III.
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From the record and the description of the events
provided to us by the parties, the following facts emerge.
Form EOIR-26 is signed by petitioner's attorney and is
accompanied by a letter from counsel. The letter is
addressed to the Office of the Immigration Judge and is dated
March 22, 1991. Form EOIR-26 is date-stamped as having been
received on March 29, 1991. As for the filing of the fee,
there is no record evidence. However, petitioner has
appended to his brief a copy of an INS fee receipt dated
April 5, 1991. According to the order of the BIA, the appeal
was not perfected until April 9, 1991. What exactly happened
between March 29th and April 9th is not clear.
Petitioner's position is that circumstances beyond
his control prevented the timely completion of the appeal
process. Although not entirely clear, petitioner avers that
the INS did not comply with 103.7(a); that is, it did not
produce a receipt on the day the fee was paid. Further,
despite being in daily contact with the INS, petitioner
asserts that a fee receipt for hand-delivery to the
immigration judge could not be obtained until after the April
1st deadline. In fact, according to petitioner, all of the
papers remained in the possession of the INS until April 9th
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-- the date the appeal was perfected. Petitioner nonetheless
avers that he is in "literal" compliance with the regulations
because he "initiated" his appeal in a timely manner by
filing Form EOIR-26 with the Office of the Immigration Judge
on March 29th.
The INS argues that petitioner's claim that he was
personally involved in the filing of the appeal and payment
of the fee is not well supported. It points out that it is
not clear exactly who filed the papers at the INS office.
While petitioner implies that he personally handled the
appeal process, the notice of appeal was sent from the office
of petitioner's attorney. Moreover, the fee receipt was
mailed, not to petitioner, but to counsel.
Given the conflicts between petitioner's assertions
and what the record reveals, petitioner's vague and
conclusory allegations are insufficient to sustain a finding
that his appeal was timely. Thus, we cannot say that the
BIA's determination was not supported by the record. The
petition for review is therefore denied.
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