Radkov v. INS

[NOT FOR PUBLICATION-NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1715
RADKO RADKOV AND MARTA D.P. RADKOVA,
Petitioners,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF DEPORTATION
Before
Stahl, Lynch, and Lipez,
Circuit Judges.
Peter Popov for petitioners.
Brenda M. O'Malley, with whom David W. Ogden, Assistant
Attorney General, and Terri J. Scadron, Senior Litigation Counsel,
were on brief for respondent.
December 20, 2000
Per Curiam. The key question in this case is whether
counsel of record for the petitioners was ever mailed the BIA's
December 29, 1998 decision denying petitioners' application for
political asylum1 and therefore excluding the petitioners as aliens
not in possession of valid immigrant visas. If the decision was sent
out in due course, then the petitioners missed the ninety-day
deadline to move to reopen from the final administrative decision.
See 8 C.F.R. § 3.2(c)(2). The petitioners did file a motion to
reopen, which was received by the BIA on July 15, 1999 and denied as
untimely on June 1, 2000.2
In support of their motion to reopen, petitioners submitted an
affidavit from their attorney of record at the time, Sylvia J.
Rolinski, Esq., stating that she never received the BIA's December
29, 1998 decision. In its June 1, 2000 decision, the BIA found that
petitioners' motion to reopen was not timely filed.
1
Petitioner Marta D.P. Radkova did not submit a separate
asylum application but was included as a derivative beneficiary
in the asylum application of her husband, petitioner Radko
Radkov.
2
The BIA also concluded that even were it to construe
petitioners' motion as one to reconsider, it would likewise deny
it as untimely filed. See 8 C.F.R. § 3.2(b)(2) (motion to
reconsider must be filed within thirty days of decision by BIA).
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Two provisions of the Code of Federal Regulations interact
on the timeliness issue. The first, 8 C.F.R. § 3.2(c)(2) provides
that the:
motion [to reopen] must be filed no later than 90 days
after the date which the final administrative decision was
rendered in the proceeding sought to be reopened.
The second, 8 C.F.R. § 3.1(f), provides that:
The decision of the Board shall be in writing and copies
thereof shall be transmitted by the Board to the Service
and a copy shall be served upon the alien or party
affected as provided in Part 292 of this chapter.3
The courts have generally held that the time for filing a review
petition begins to run when the BIA complies with the terms of the
federal regulations by mailing its decision to a petitioner's address
of record. See, e.g., Martinez-Serrano v. INS, 94 F.3d 1256, 1258-59
(9th Cir. 1996); Ouedraogo v. INS, 864 F.2d 376, 378 (5th Cir. 1989).
In instances where it is undisputed that the BIA decision was mailed,
at least one court has held that the fact that counsel did not
receive the notice did not excuse the failure to file. See Nowak v.
INS, 94 F.3d 390, 391-92 (7th Cir. 1996). We do not reach the latter
issue.
3
Section 292 of Title 8 of the Code provides that service of
a final deportation order may be upon an alien's counsel of
record. See 8 C.F.R. § 292.5 (requiring service of "any paper
other than a warrant of arrest or a subpoena" upon "the attorney
or representative of record, or the person himself if
unrepresented"); Arreaza-Cruz v. INS, 39 F.3d 909, 911 (9th Cir.
1994).
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The difficulty for judicial review is that the BIA's
decision not to reopen appears to be based on an argument not
particularly germane to the core issue. Petitioners have put into
question whether the December 29 decision was in fact mailed by the
BIA. The BIA focused on the assumption that the decision had been
mailed to the attorney of record, Rolinski, at the address provided
on the notice of entry of appearance previously submitted to the BIA
on December 22, 1992. This appears to be in response to a statement
in attorney Rolinski's affidavit that she had changed her address in
October, 1993 and so notified the agency. The BIA concluded that the
record did not reflect any written notice of such change. Thus the
BIA's decision seems to rest on its right to disregard the asserted
change in the attorney’s business mailing address.
However, that issue -- the issue of the attorney's proper
address -- is, in our view, irrelevant, because attorney Rolinski
also states in her affidavit that she continued to receive mail at
both addresses and simply did not receive the December 29, 1998
decision at either address. In denying petitioners' motion to
reopen, the BIA did not address the sworn contention by Rolinski that
she never received the December 29, 1998 decision, which raises the
question of whether the December 29 decision was ever actually
mailed. It is true that the record shows a copy of BIA Chairman Paul
W. Schmidt's transmittal letter dated December 29, 1998, but the
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BIA's June 1 decision does not address the claim that the earlier
decision and letter were never sent out.
Because the BIA's decision appears to be based on
reasoning extraneous to the central issue, we vacate and remand for
further consideration and explanation of whether the December 29
opinion and order was in fact properly mailed, see 8 C.F.R. § 3.1(f),
in light of the affidavit from counsel that it was never received,
cf. Gailius v. INS, 147 F.3d 34, 43-47 (1st Cir. 1998). On remand the
BIA should also consider the apparent absence in the record of a
contemporaneous notation, such as an entry on a docket sheet, that
would support a finding that the December 29 decision was in fact
mailed. See Ouedraogo, 864 F.2d at 378. Both parties are free to
submit additional evidence on remand.
So ordered.
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