F-1841
Decided by Board April 30, 1948
Fines — Appeal from Commissioner's order — Extending time for appeal — 8 C.F.R. 90.9 (b) — Motion to reconsider or reopen addressed to Commissioner — 8 C.F.R. 90.10 — Appeal from Commissioner's adverse action on such motion — 8 C.F.R. 90.9 (b).
(1) There is no provision in the pertinent regulation (8 C.F.R. 90.9 (b)) which gives either the Board of Immigration Appeals or the Service power to extend the time within which an appeal must be filed, but if timely appeal was filed, an extension of time within which to submit briefs may be granted.
(2) If the Service takes adverse action on a motion to reconsider or reopen a final Commissioner's order (8 C.F.R. 90.10), an appeal lies to the Board of Immigration Appeals (8 C.F.R. 90.9 (b)). (See 3 IN Dec. 167.)
BEFORE THE BOARD
Discussion: In this case fine in the amount of $350 was imposed by the Acting Commissioner on October 9, 1947 against Ramsay, Scarlett Co., Inc., agents of the vessel S.S. Dirphys, which arrived at the port of Baltimore, Md., July 19, 1947, for failure to deliver a proper and complete crew list covering G---- P---- and 34 other alien members of the crew, in accordance with the provisions of section 36, Immigration Act of 1917.
On January 9, 1948, the Acting Commissioner granted the agents an additional period of 50 days in order to submit an appeal from the order of October 9, 1947. On March 1, 1948, that official denied a request for additional time within which to file an appeal.
The record contains an appeal by the agents dated March 8, 1948, and received by the Service on March 10, 1948. It was transmitted and received by this Board April 8, 1948.
Section 90.9 (b), title 8, Code of Federal Regulations, provides in pertinent part that all notices of appeal shall be filed in triplicate within 15 business days after the date of notification of the Commissioner's order, except that, if the party against whom the order is effective is retained in the custody of the Immigration and Naturalization Service, such appeal shall be filed within 5 business days after the notification of such order. All notices of appeal to the Board of Immigration Appeals shall be filed by the party against whom the order is effective or by his counsel or representative.
There is no provision in the pertinent regulation set forth above which gives either this Board or the Service power to extend the time within which an appeal must be filed ( Matter of L----, A-6798983, Feb. 11, 1948).
Where, however, an appeal has been filed within the required time limitation, an extension of time within which to submit briefs may be granted.
We may point out, incidentally, that part 90.10 of said title and code provides, in pertinent part, that the reconsideration or reopening of any case in which the Commissioner's order is or has become final shall be only upon written motion addressed to that official in triplicate and may be submitted to him directly or through the field office handling the case. That official may, in his discretion, grant or deny said motion. Such a motion shall state the reasons for reconsideration. Appeal from an adverse order of the Commissioner upon such a motion lies to the Board of Immigration Appeals, and shall be filed in accordance with paragraph (b) of section 90.9, above. Thus, while motions to reconsider or reopen may be made at any time while a case is pending, the time of filing an appeal is governed by paragraph (b) of section 90.9, above.
Since in the case before us, we are without jurisdiction to consider the appeal because of the untimely filing of same by the agents, the matter will be remanded to the Commissioner without action.
Order: The case herein is remanded to the Commissioner, without action, in accordance with the foregoing stated reasons.