August 4, 1994
                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 93-2324 

                         LEOS KUBEC,

                         Petitioner,

                              v.

           IMMIGRATION AND NATURALIZATION SERVICE,

                         Respondent.

                                         

              ON PETITION FOR REVIEW OF AN ORDER
             OF THE BOARD OF IMMIGRATION APPEALS

                                         

                            Before

                  Torruella, Selya and Stahl,
                       Circuit Judges.
                                     

                                         

Leos Kubec on brief pro se.
          
Frank W. Hunger,  Assistant Attorney General, and Robert  Kendall,
                                                                  
Jr.,  Assistant  Director,  Office  of  Immigration  Litigation, Civil

Division, Department of Justice, on brief for respondent.

                                         

                                         

          Per Curiam.   Petitioner  Leos Kubec, a  native and
                    

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.  
                                                 

1254(e).  The judge also informed  petitioner that any appeal

to the BIA had to be filed by April 1, 1991.

                             II.
                               

          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
                                            

(9th Cir. 1993);  Matter of G.Z., 5 I. &amp; N Dec. 295 (1953); 1
                                

                             -3-

C.  Gordon &amp; S. Mailman, Immigration Law and Procedure   3.05
                                                      

[4][a], at 3-53 (rev. ed. 1994).

                             III.
                                

          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

                             -4-

-- 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.
                                       

                             -5-
