LOPEZ

                                               Interim Decision #3343




              In re Duwlav Edilzar LOPEZ, Respondent

                     File A74 291 863 - Miami

                      Decided March 24, 1998


                    U.S. Department of Justice
              Executive Office for Immigration Review
                   Board of Immigration Appeals


  Where the Board of Immigration Appeals dismisses an appeal as
untimely, without adjudication on the merits, the Board retains
jurisdiction over a motion to reconsider its dismissal of the
untimely appeal to the extent that the motion challenges the finding
of untimeliness or requests consideration of the reasons for
untimeliness.   Matter of Mladineo, 

 (BIA 1974),
modified.

Carlos A. Rodrigues, Esquire, Miami, Florida, for the respondent

Pamela D. Ransome, Assistant District Counsel, for the Immigration
and Naturalization Service


Before:   Board Panel: SCHMIDT, Chairman;    MATHON,   Board   Member;
          MILLER, Alternate Board Member.


SCHMIDT, Chairman:

  On May 15, 1997, the Board dismissed the respondent’s appeal from
the Immigration Judge’s decision as untimely. On June 16, 1997, the
respondent filed this motion to reconsider with the Board,




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requesting that we reconsider our dismissal of the untimely appeal.1
The motion will be denied.

  As an initial matter, we must resolve the issue of whether the
Board has jurisdiction to adjudicate the respondent’s motion to
reconsider in light of our holding in Matter of Mladineo, 

 (BIA 1974). In that case, we held that where the Board
dismisses an appeal solely for lack of jurisdiction, without
adjudication on the merits, the appeal is deemed nugatory, and the
Immigration Judge retains jurisdiction over any subsequent motion to
reopen or reconsider. However, we now modify our holding in Matter
of Mladineo, supra, and hold that the Board retains jurisdiction
over a motion to reconsider its dismissal of an untimely appeal to
the extent that the motion challenges the finding of untimeliness or
requests consideration of the reasons for untimeliness. Therefore,
the Board has jurisdiction to adjudicate the respondent’s motion to
reconsider.

  A motion to reconsider asserts that at the time of the Board’s
previous decision, an error was made. It is a “‘request that the
Board reexamine its decision in light of additional legal arguments,
a change of law, or perhaps an argument or aspect of the case which
was overlooked.’” Matter of Cerna, 

, at 402 n.2 (BIA
1991) (quoting Hurwitz, Motions Practice Before the Board of
Immigration Appeals, 

, 90 (1992)).        The
regulations require that a motion to reconsider shall state the
reasons for the motion by specifying the errors of fact or law in
the prior Board decision and shall be supported by pertinent
authority. 

(b)(1) (1997).

  The respondent’s Notice of Appeal (Form EOIR-26), which was
required to be filed on or before February 27, 1997, was not filed
until February 28, 1997. The respondent’s motion contains a sworn
affidavit from his counsel’s receptionist, who claims to have
personally mailed the Notice of Appeal by dropping it off at a
Federal Express mailbox located in her office building.      In her
affidavit, she attests to her belief that packages deposited at the


1
 The motion is timely under the regulations, which require a motion
to reconsider to be filed within 30 days after the Board’s decision
is mailed. See 

, 10,330 (1997) (to be codified
at 

(b)(2)) (interim, effective Apr. 1, 1997). The
respondent’s motion had to be filed within 30 days of the Board’s
decision on May 15, 1997, which was Saturday, June 14, 1997. The
motion was therefore due on the next business day, Monday, June 16,
1997, the day it was filed.

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site by 6:00 p.m. would be picked up that evening and delivered by
the following day. She avers that she dropped off the respondent’s
appeal before 6:00 p.m. on February 26, 1997.       However, she was
later informed by Federal Express that the final mail collection for
the Federal Express box in her building occurred at 5:45 p.m.
Consequently, the package was not picked up until the following day,
February 27, 1997, and the respondent’s Notice of Appeal did not
arrive at the Appeals Processing Unit of the Board until February
28, 1997, 1 day after the deadline.

  We find this explanation to be insufficient to warrant
reconsideration. The receptionist for the respondent’s counsel does
not explain the basis for her assumption that the last Federal
Express pickup would occur at 6:00 p.m.2 Furthermore, we note that
the respondent waited until the very end of the 30-day appeal period
to mail the Notice of Appeal and did not provide sufficient time for
delivery.

  Therefore, we decline to reconsider our decision to dismiss the
respondent’s appeal as untimely. Accordingly, the motion will be
denied.

    ORDER:   The respondent’s motion to reconsider is denied.

  FURTHER ORDER: The record is returned to the Immigration Court
without further action by the Board.




2
 We note that the respondent’s counsel, in his motion, asserts that
his office “has used the Federal Express service innumerable times
without this situation ever occurring previously,” and that
“inexplicably, Federal Express picked up their six o’clock mail at
5:45 p.m.”    These assertions, however, are contradicted by the
receptionist’s affidavit, which notes that Federal Express informed
counsel’s office that the last pickup time for the mail box in
question “is done at 5:45 p.m. every working day.”

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