                Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit

No. 04-1542

              MARLENE DAISY GUERRA CABALLERO ET AL.,
                           Petitioners,

                                      v.

              ALBERTO R. GONZALES,* ATTORNEY GENERAL,
                            Respondent.


                  PETITION FOR REVIEW OF AN ORDER

               OF THE BOARD OF IMMIGRATION APPEALS


                                   Before

                        Boudin, Chief Judge,
               Torruella and Selya, Circuit Judges.


     Desmond P. FitzGerald and FitzGerald & Company, LLC on brief
for petitioners.
     Peter D. Keisler, Assistant Attorney General, Civil Division,
M. Jocelyn Lopez Wright, Assistant Director, Office of Immigration
Litigation, and Carol Federighi, Attorney, Office of Immigration
Litigation, on brief, for respondent.


                               May 11, 2005




     *
      Alberto R. Gonzales was sworn in as United States Attorney
General on February 3, 2005.      We have therefore substituted
Attorney General Gonzales for his predecessor in office as
respondent in this matter. See Fed. R. App. P. 43(c)(2).
            Per Curiam.      In September of 2000, petitioner-appellant

Marlene   Daisy     Guerra      Caballero       (Guerra)   and    her   three   minor

children, all Panamanian nationals, were apprehended by immigration

officials at Miami International Airport when they failed to

present valid entry documents.             The government instituted removal

proceedings but provisionally released the petitioner and her

family, who took up residence in Massachusetts.                         The removal

proceedings were referred there and the petitioner cross-filed for

asylum, withholding of removal, and relief under the Convention

against Torture (CAT) on behalf of herself and her children.

            Following a hearing on March 14, 2003, an immigration

judge (IJ) adjudged the petitioner and her children removable and

rejected their applications for asylum, withholding of removal, and

relief under CAT. The IJ's memorandum decision admonished that any

appeals from the decision were due on or before April 14, 2003.

See 8 C.F.R. § 1003.38(b) (stating that appeals shall be filed

within thirty days after the stating of an IJ's oral decision or

the mailing of an IJ's written decision).                  The IJ's written order

was personally served on the petitioner.

            The    petitioner's       attorney,         Desmond    P.   FitzGerald,

completed   a     notice   of    appeal     on    the   petitioner's     behalf   and

overnighted it, via a delivery service, on Friday, April 11, 2003.

This notice listed only the petitioner as an appellant, omitting




                                          -2-
any mention of her children.1          The mailing was flawed, however, in

a fatal respect:        it was addressed to the immigration court in

Boston rather than to the BIA's offices in Falls Church, Virginia.

See id. (stating that "[t]he Notice of Appeal . . . shall be filed

directly with the Board of Immigration Appeals").                   The following

Monday, a clerk at the immigration court received the wayward

missive and promptly called Attorney FitzGerald to notify him of

the   error.       By   then,   it   was   too   late:      although     Attorney

FitzGerald's office promptly forwarded a duplicate copy of the

notice to the BIA, that agency did not receive it until April 16,

2003 — two business days after the regulatory deadline had passed.

            The    petitioner    followed    this   unsuccessful       effort   at

remediation with a motion to enlarge the time to file a brief, in

which     she   acknowledged     her    lapse    and     asserted     unspecified

constitutional rights in an attempt to persuade the BIA to overlook

that lapse.       The BIA was unconvinced:       in a decision dated August

25, 2003, it cited the expiration of the thirty-day appeal period

as its basis for determining that further briefing would be an

exercise in futility and that it lacked subject matter jurisdiction

over the attempted appeal.           Accordingly, the BIA deemed the IJ's



      1
      No notices of appeal were filed on the children's behalf
until almost six months after the due date. On March 24, 2004, the
BIA rejected the children's appeals as untimely.     In her brief
before this court, the petitioner discusses only the BIA's failure
to allow her own appeal to proceed; she does not attempt to
formulate any argument that the children's appeals were timely.

                                       -3-
decision "final" and returned the case to the immigration court.

See id. § 1003.39.

            Undeterred,    the   petitioner    filed      a   motion   for

reconsideration.     In it, she characterized her attorney's blunder

as a "technical error[]" and argued that her good-faith effort to

comply with the deadline warranted a determination that the notice

of appeal was timely.     The BIA denied the motion on March 24, 2004,

repeating substantially the same refrain that had been articulated

in   its   earlier   decision.   This    petition   for   judicial   review

followed.

            On appeal, the petitioner renews her attack, first made

below, on the BIA's determination that her appeal rights were

forfeited.    Because the petitioner failed to seek timely judicial

review of the BIA's August 25, 2003 ruling, the scope of our review

is necessarily limited to the BIA's denial of her motion to

reconsider.    See 8 U.S.C. § 1252(b)(1) (requiring that petitions

for judicial review be submitted within thirty days of a final

order of removal); see also Stone v. INS, 514 U.S. 386, 394-95

(1995) (holding that filing a motion for reconsideration does not

toll the time to petition for review); Zhang v. INS, 348 F.3d 289,

292 (1st Cir. 2003) (similar).

            We review denials of motions to reconsider solely for

abuse of discretion.      Zhang, 348 F.3d at 293; Nascimento v. INS,

274 F.3d 26, 28 (1st Cir. 2001).     "In the reconsideration context,


                                   -4-
we will find an abuse of discretion if the denial was made without

a 'rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis' (such as race)."

Zhang, 348 F.3d at 293 (quoting Nascimento, 274 F.3d at 28).

            Viewed through this prism, the petitioner's argument is

unpersuasive. She devotes her brief to explaining, for what is now

the third time, why her notice of appeal should be considered

timely even though the BIA did not receive it by the appointed

deadline.   The substantive argument is unavailing:   the applicable

regulations are crystal clear as to what constitutes timely filing

of a notice of appeal, and the petitioner's filing does not satisfy

those criteria.    See 8 C.F.R. § 1003.3(a)(1) ("An appeal is not

properly filed unless it is received at the Board, along with all

required documents, fees or fee waiver requests, and proof of

service, within the time specified in the governing sections of

this chapter." (emphasis supplied)); id. § 1003.38(b) (stating that

the notice "shall be filed directly with the Board of Immigration

Appeals within 30 calendar days" of an IJ's decision).      The BIA

itself recognized, more than half a century ago, that it ordinarily

is powerless to ignore this regulatory limitation.2       "Where an


     2
      Under certain circumstances an immigration court may certify
an appeal directly to the BIA. See 8 C.F.R. §§ 1003.1(c), 1003.7.
Such a certification may provide the agency with the ability to
review an otherwise untimely appeal. See Shamsi v. INS, 998 F.2d
761, 762 n.2 (9th Cir. 1993); Matter of Iberia Airlines Flight No.
IB 951, 19 I. & N. Dec. 768, 768-69 (BIA 1988). However, this
procedure is entirely discretionary and, in all events, has not

                                 -5-
appeal is not filed timely . . . the Board is without authority or

jurisdiction to consider the appeal."      Matter of G-Z-, 5 I. & N.

Dec. 295, 295 (BIA 1953) (holding that an appeal filed one day late

was unreviewable); accord Da Cruz v. INS, 4 F.3d 721, 722 (9th Cir.

1993).

          There are, of course, equitable exceptions to this rule

— but they are very few and far between.    For example, courts have

granted equitable relief when a petitioner has been misled by the

IJ's acts or words into believing that the time for appeal has been

extended or tolled and then reasonably relied on that assurance.

See, e.g., Hernandez-Rivera v. INS, 630 F.2d 1352, 1355 (9th Cir.

1980).   Nothing remotely resembling such misplaced reliance is

alleged here.   This is a case of late filing, pure and simple, and

thus does not justify an equitable exception.     See Stajic v. INS,

961 F.2d 403, 404-05 (2d Cir. 1992).

          At bottom, the petitioner invites us to classify as

irrational, anomalous, or discriminatory a BIA decision that did no

more than apply the regulations straightforwardly and in a manner

consistent with the Board's own precedents.      On this record, it

would defy logic to accept that invitation.    There is no hint here

that the BIA misconceived the facts, misinterpreted the law, or

acted arbitrarily.   Accordingly, there is no plausible basis for




been invoked here.

                                -6-
finding an abuse of discretion.    See Wang v. Ashcroft, 367 F.3d 25,

27 (1st Cir. 2004).

          We need go no further.    We hold that the BIA acted within

the realm of its discretion when it denied the petitioner's motion

for reconsideration and refused to revivify her expired appeal

rights.

          The petition for review is denied.




                                  -7-
