Interim Decision #3343

Interim Decision #3343

In re Duwlav Edilzar LOPEZ, Respondent

File A74 291 863 - Miami

Decided March 24, 1998

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Where the Board of Immigration Appeals dismisses an appeal as

untimely, without adjudication on the merits, the Board retains

jurisdiction over a motion to reconsider its dismissal of the

untimely appeal to the extent that the motion challenges the finding

of untimeliness or requests consideration of the reasons for

untimeliness.

Matter of Mladineo, 14 I&N Dec. 591 (BIA 1974),

modified.

Carlos A. Rodrigues, Esquire, Miami, Florida, for the respondent

Pamela D. Ransome, Assistant District Counsel, for the Immigration

and Naturalization Service

Before:

Board Panel: SCHMIDT, Chairman;

MILLER, Alternate Board Member.

MATHON,

Board

Member;

SCHMIDT, Chairman:

On May 15, 1997, the Board dismissed the respondent’s appeal from

the Immigration Judge’s decision as untimely. On June 16, 1997, the

respondent filed this motion to reconsider with the Board,

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Interim Decision #3343

requesting that we reconsider our dismissal of the untimely appeal.1

The motion will be denied.

As an initial matter, we must resolve the issue of whether the

Board has jurisdiction to adjudicate the respondent’s motion to

reconsider in light of our holding in Matter of Mladineo, 14 I&N

Dec. 591 (BIA 1974). In that case, we held that where the Board

dismisses an appeal solely for lack of jurisdiction, without

adjudication on the merits, the appeal is deemed nugatory, and the

Immigration Judge retains jurisdiction over any subsequent motion to

reopen or reconsider. However, we now modify our holding in Matter

of Mladineo, supra, and hold that the Board retains jurisdiction

over a motion to reconsider its dismissal of an untimely appeal to

the extent that the motion challenges the finding of untimeliness or

requests consideration of the reasons for untimeliness. Therefore,

the Board has jurisdiction to adjudicate the respondent’s motion to

reconsider.

A motion to reconsider asserts that at the time of the Board’s

previous decision, an error was made. It is a “‘request that the

Board reexamine its decision in light of additional legal arguments,

a change of law, or perhaps an argument or aspect of the case which

was overlooked.’” Matter of Cerna, 20 I&N Dec. 399, at 402 n.2 (BIA

1991) (quoting Hurwitz, Motions Practice Before the Board of

Immigration Appeals, 20 San Diego L. Rev. 79, 90 (1992)).

The

regulations require that a motion to reconsider shall state the

reasons for the motion by specifying the errors of fact or law in

the prior Board decision and shall be supported by pertinent

authority. 8 C.F.R. § 3.2(b)(1) (1997).

The respondent’s Notice of Appeal (Form EOIR-26), which was

required to be filed on or before February 27, 1997, was not filed

until February 28, 1997. The respondent’s motion contains a sworn

affidavit from his counsel’s receptionist, who claims to have

personally mailed the Notice of Appeal by dropping it off at a

Federal Express mailbox located in her office building.

In her

affidavit, she attests to her belief that packages deposited at the

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The motion is timely under the regulations, which require a motion

to reconsider to be filed within 30 days after the Board’s decision

is mailed. See 62 Fed. Reg. 10,312, 10,330 (1997) (to be codified

at 8 C.F.R. § 3.2(b)(2)) (interim, effective Apr. 1, 1997). The

respondent’s motion had to be filed within 30 days of the Board’s

decision on May 15, 1997, which was Saturday, June 14, 1997. The

motion was therefore due on the next business day, Monday, June 16,

1997, the day it was filed.

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site by 6:00 p.m. would be picked up that evening and delivered by

the following day. She avers that she dropped off the respondent’s

appeal before 6:00 p.m. on February 26, 1997.

However, she was

later informed by Federal Express that the final mail collection for

the Federal Express box in her building occurred at 5:45 p.m.

Consequently, the package was not picked up until the following day,

February 27, 1997, and the respondent’s Notice of Appeal did not

arrive at the Appeals Processing Unit of the Board until February

28, 1997, 1 day after the deadline.

We find this explanation to be insufficient to warrant

reconsideration. The receptionist for the respondent’s counsel does

not explain the basis for her assumption that the last Federal

Express pickup would occur at 6:00 p.m.2 Furthermore, we note that

the respondent waited until the very end of the 30-day appeal period

to mail the Notice of Appeal and did not provide sufficient time for

delivery.

Therefore, we decline to reconsider our decision to dismiss the

respondent’s appeal as untimely. Accordingly, the motion will be

denied.

ORDER:

The respondent’s motion to reconsider is denied.

FURTHER ORDER: The record is returned to the Immigration Court

without further action by the Board.

2

We note that the respondent’s counsel, in his motion, asserts that

his office “has used the Federal Express service innumerable times

without this situation ever occurring previously,” and that

“inexplicably, Federal Express picked up their six o’clock mail at

5:45 p.m.”

These assertions, however, are contradicted by the

receptionist’s affidavit, which notes that Federal Express informed

counsel’s office that the last pickup time for the mail box in

question “is done at 5:45 p.m. every working day.”

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