[NOT FOR PUBLICATION-NOT TO BE CITED AS PRECEDENT]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

 
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).

-2-

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.
3Section 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).

-3-

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.
-4-

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
-5-

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.