Deo Narayan, Petitioner, v. Immigration & Naturalization Service, Respondent, 56 F.3d 72 (9th Cir. 1995)

MEMORANDUM^* 

Narayan petitions for review of a Board of Immigration Appeals (BIA) order denying his motion for reconsideration of an order dismissing as untimely his appeal from a judgment denying his petition for stay of deportation proceedings. The Immigration Judge (IJ) denied his stay petition on November 12, 1992. Narayan's counsel mailed his notice of appeal on November 23, 1992. Because Narayan's counsel mailed the notice, the immigration regulations gave her until November 25 for the notice to be filed with the IJ's office. 8 C.F.R. Sec. 3.38(b); see Gonzales-Julio v. INS, 34 F.3d 820, 822 n.1 (9th Cir. 1994); Vlaicu v. INS, 8 F.2d 758, 759-60 n.1 (9th Cir. 1993). The notice is marked in the administrative record as filed on November 24. Narayan's notice was thus timely filed, the BIA erred in dismissing Narayan's appeal as untimely, and the BIA abused its discretion by denying his motion for reconsideration.

Because we reverse the BIA's dismissal on the BIA's dismissal on the BIA's erroneous application of the immigration regulations, we do not reach Narayan's claim that his counsel rendered ineffective assistance by filing the notice of appeal after ten days.

We GRANT the petition for review and REVERSE the BIA's denial of reconsideration of the dismissal of Narayan's appeal.

GRANTED and REVERSED.