
USCA1 Opinion

	




          August 4, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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. & N Dec. 295 (1953); 1                              ______________                                         -3-            C.  Gordon & 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-
