United States Court of Appeals
For the First Circuit
No. 02-2666
RADKO RADKOV AND MARTA D. P. RADKOVA,
Petitioners,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Peter Popov on brief for petitioners.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Linda S. Wernery, Senior Litigation Counsel, Office of Immigration
Litigation, and Brenda M. O'Malley, Attorney, Office of Immigration
Litigation, on brief for respondent.
July 13, 2004
SELYA, Circuit Judge. The petitioners, Radko Radkov and
Marta Dontcheva Pencheva Radkova, Bulgarian nationals, seek review
of a decision by the Board of Immigration Appeals (the BIA) denying
their motion to reopen as untimely filed. As the underlying
exclusion proceedings commenced prior to April 1, 1997, and the BIA
issued its final decision subsequent to October 31, 1996, we have
jurisdiction pursuant to section 106(a) of the Immigration and
Nationality Act, 8 U.S.C. § 1105a(a), as modified by the
transitional rules for judicial review contained in section
309(c)(4)(A) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat.
3009-546, 3009-626 (enacted Sept. 30, 1996). See Saint Fort v.
Ashcroft, 329 F.3d 191, 197-98 (1st Cir. 2003).
The procedural history of this case is tangled. On
August 6, 1992, an immigration judge found the petitioners
excludable and denied their request for asylum and withholding of
deportation. The BIA upheld this determination in a decision dated
December 29, 1998 (the Decision). The petitioners did not seek
judicial review and the time for doing so expired.
Subsequent to the expiration of the judicial review
period, the petitioners, through new counsel, filed a motion to
reopen on July 15, 1999. This filing seemingly contravened the
command of 8 C.F.R. § 1003.2(c)(2), which provides that motions to
reopen must be docketed with the BIA no later than ninety days
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after the date of the final administrative decision in the
underlying proceeding. The petitioners aspired to avoid this
temporal bar by submitting an affidavit from their former attorney
of record, Sylvia J. Rolinski, stating that she never received the
Decision. On this basis, the petitioners argued that the Decision
had never been mailed to the attorney and that, therefore, they had
been deprived of a fair chance to seek judicial review. See 8
C.F.R. § 1003.1(f) (providing that "[t]he decision of the Board
shall be in writing . . . and a copy shall be served upon the alien
or party affected").
On June 1, 2000, the BIA denied the petitioners' motion
as untimely. The petitioners sought judicial review of that order
within the specified period. In considering that petition, we
identified the critical issue as "whether counsel of record for the
petitioners was ever mailed the [Decision]." Radkov v. INS, 248
F.3d 1127, 2000 WL 1875857, at *1 (1st Cir. 2000) (table). We
added that "[i]f the decision was sent out in due course, then the
petitioners missed the ninety-day deadline to move to reopen," and,
thus, denial of the motion to reopen was appropriate. Id.
Concluding that the BIA had not focused sufficiently on the issue
of mailing, we vacated the order appealed from and remanded for
"further consideration and explanation of whether the . . . order
was in fact properly mailed." Id. at *2.
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In a new round of proceedings, the BIA again denied the
motion to reopen. By order dated November 20, 2002, the BIA noted
that a motion to reopen must be filed no later than ninety days
after the final administrative decision in a case. 8 C.F.R. §
1003.2(c)(2). Therefore, a motion to reopen the petitioners' case
was due on or before March 29, 1999. Remarking the obvious — that
the petitioners' motion was not filed until July 15, 1999 — the
BIA found that the Decision had been seasonably mailed to Attorney
Rolinski at the last address she had provided.1 Accordingly, the
BIA denied the motion as untimely. Relatedly, it rejected the
petitioners' request that, as a matter of unfettered discretion, it
reissue its final administrative decision in light of Attorney
Rolinski's claim that she did not receive the Decision. In that
regard, the BIA took pains to explain that the record did not
reflect any written notice of a change in Attorney Rolinski's
address until well after December 29, 1998.
We apply an abuse of discretion standard when reviewing
the BIA's grant or denial of a motion to reopen. INS v. Doherty,
502 U.S. 314, 315 (1992); INS v. Abudu, 485 U.S. 94, 99 n.3 (1988).
Under that multifaceted rubric, we must accept the BIA's subsidiary
findings of fact as long as they are supported by substantial
1
The parties, who agree on little else, concur that mailing
the Decision to the petitioners' then-attorney at her designated
address of record, if accomplished, would be the legal equivalent
of a mailing to the petitioners. See 8 C.F.R. § 292.5.
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evidence. If, given the relevant proof, a reasonable mind could
accept a particular factual determination, that determination
satisfies the substantial evidence standard. Martinez v. INS, 970
F.2d 973, 974 (1st Cir. 1992). The BIA's legal conclusions are
reviewed de novo, according due weight to the BIA's expertise in
construing the statutory framework that it administers. Albathani
v. INS, 318 F.3d 365, 372 (1st Cir. 2003). In the immigration
context, as elsewhere, an error of law on the trier's part
comprises an abuse of discretion. See, e.g., Rosario-Urdaz v.
Rivera-Hernandez, 350 F.3d 219, 221 (1st Cir. 2003).
We discern no abuse of discretion here. The BIA, under
an explicit mandate from this court to ponder the record (including
the Rolinski affidavit), reexamine its findings, and explain
whatever conclusion it then reached, determined that the Decision
had been mailed contemporaneously to the petitioners' attorney of
record. Given the BIA's fuller explanation, we think that its
determination is supportable. We comment briefly.
The record shows that Attorney Rolinski submitted an
entry of appearance to the BIA (Form EOIR 27) on December 22, 1992,
listing her address as "1615 L Street, NW Suite 1200, Washington,
DC 20036." The administrative record contains no evidence that
Attorney Rolinski notified the BIA prior to December 29, 1998, that
she had changed her address (and, indeed, she does not claim to
have done so). Moreover, the BIA noted that its computer records
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indicate that Attorney Rolinski changed the address she had
registered with the BIA to "10400 Eastwood Avenue, Silver Spring,
MD 20901" on May 26, 1999. This change came after the time for
filing a motion to reopen in this case had expired.
Of course, Attorney Rolinski avers that, even after she
set up shop in Maryland, she continued to receive mail at her
Washington address. Extrapolating from this averment, the
petitioners, vigorously represented by successor counsel, continue
to question whether the Decision was contemporaneously mailed to
Attorney Rolinski at that address. This time around, the BIA
answered this query directly and affirmatively. That finding is
supported by substantial evidence.
As currently configured, the record contains the original
of the Decision, the transmittal letter that accompanied the
Decision (signed by the BIA's chair), and the envelope in which the
Decision and transmittal letter were mailed to Attorney Rolinski.
The envelope is postmarked December 29, 1998. Moreover, a
contemporaneous notation made in the BIA's computer system
indicates that the Decision was in fact mailed on that date. The
record further reflects that these documents, having been mailed on
December 29, 1998, were returned on January 15, 1999, with a
notation on the envelope explaining: "NO LONGER AT THIS ADDRESS
PLEASE RETURN TO SENDER." The record contains the envelope and its
returned contents. The returned transmittal letter bears a stamp
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indicating that it was received at the BIA, in the clerk's office,
on January 15, 1999.
The petitioners' effort to undermine the significance of
this evidence is unpersuasive. They claim, for example, that the
envelope cannot constitute proof of mailing because no mailing
address appears on it and, therefore, it "cannot be connected to
[petitioners'] file at all." Petitioners' Br. at 26. That is a
gross exaggeration. The original envelope utilizes a clear window
for the display of a mailing address, and the transmittal letter
accompanying the Decision contains the name and address of
petitioners' then-attorney in the upper left-hand corner, designed
to appear in the glassine window when folded for mailing. While
inferences are needed to make the connection, those inferences are
reasonable ones — and the BIA was entitled to draw them.
Our conclusion that the record supports the finding that
the BIA contemporaneously mailed the Decision to counsel at her
address of record effectively ends the matter. The time for filing
a review petition begins to run when the BIA complies with the
terms of the applicable regulations by mailing its decision to a
petitioner's address of record. Martinez-Serrano v. INS, 94 F.3d
1256, 1258-59 (9th Cir. 1996); Ouedraogo v. INS, 864 F.2d 376, 378
(5th Cir. 1989). Even if, as the petitioners contend, the mailing
in this case somehow went awry without any fault on the part of the
BIA, that circumstance alone would not excuse the failure to file
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a timeous motion to reopen. See Nowak v. INS, 94 F.3d 390, 391
(7th Cir. 1996); cf. Rivera v. Fossarina, 840 F.2d 152, 155 (1st
Cir. 1988) (holding that under Fed. R. Civ. P. 5(b), service by
mail is complete upon mailing even if the mailing is not thereafter
received).
We need go no further.2 In our earlier opinion, we
directed the BIA to consider the Rolinski affidavit, reexamine the
evidence (including any new proffers), and, if its view remained
unchanged, explain in greater detail the basis for its conclusion
that the Decision had been contemporaneously mailed. See Radkov,
2000 WL 1875857, at *2. The BIA has carried out this assignment
assiduously and its response satisfies its burden of explication.
Hence, we affirm the denial of the motion to reopen as untimely and
deny the petition for review.
So Ordered.
2
The petitioners alternatively style their motion as a motion
for reconsideration. The BIA rejected this alternative
formulation. That rejection was justified. The motion plainly did
not meet the requirements for a motion to reconsider in that it did
not identify any errors of fact or law in the Decision. See 8
C.F.R. § 1003.2(b)(1).
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