Lopez-Vega

MEMORANDUM **

Juan Carlos Lopez-Vega, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (“BIA”). In this order, the BIA dismissed Lopez-Vega’s appeal from the Immigration Judge’s decision denying his application for adjustment of status and for cancellation of removal. The BIA’s order states that Lopez-Vega’s notice of appeal was timely presented for filing, but was rejected because the certificate of service was incomplete. The Board determined that the Notice of Appeal failed to show the complete address of the Office of District Counsel being served.

Under 8 C.F.R. § 1003.38 (b), an appeal must be filed within thirty calendar days of an immigration judge’s decision. The BIA explicitly warned Lopez-Vega that this deadline would not be tolled, and that he must re-submit his appeal along with a complete certificate of service before the thirty days expired. By the time Lopez-Vega perfected his appeal, the thirty day deadline had passed, and the BIA rejected his appeal as untimely.

The BIA’s order constitutes a final order of removal which we have jurisdiction to review under 8 U.S.C. § 1252 (a)(1). The government argues that we…

dissenting:

Because (1) Petitioner filed an untimely appeal with the BIA; (2) Petitioner waived appealing the reason the BIA refused to accept his original filing, by failing to address it in his opening brief; and (3) the *625 record supports the BIA decision to reject the original filing, I dissent.

1. Petitioner’s Notice of Appeal was untimely.

On May 11, 2004, the IJ ordered Lopez-Vega’s removal. On June 7, 2004, the BIA received Lopez-Vega’s Notice of Appeal. Lopez-Vega failed to provide a complete address in the certificate of service. The “Proof of Service” section in the Notice of Appeal expressly states “if you do not complete this section properly, your appeal will be rejected or dismissed.” As such, the BIA rejected Lopez-Vega’s Notice of Appeal on June 15, 2004. The rejection notice states, in relevant part:

Despite these specific instructions, Lopez-Vega (1) did not file his corrected Notice of Appeal until July 8, 2004 (8 days after the required June 30, 2004 date) and (2) did not include a request to accept by certification. Thus, Lopez-Vega did not timely file his Notice of Appeal. These facts are undisputed in the record. Therefore, the petition must be…