In a petition for review of the BIA's denial of petitioner's motion to reconsider its rejection of petitioner's appeal as being untimely filed, the petition is denied where 8 C.F.R. section 1003.38(b) is ambiguous regarding the BIA's jurisdiction to consider late filings, and the BIA's interpretation barring petitioner's filing was not plainly erroneous or inconsistent with the language of the regulation.
Argued and Submitted March 10, 2009
Filed September 29, 2009
Opinion by Judge Smith
Dissent by Judge Kleinfeld
Charles E. Nichol, Law Offices of Charles E. Nichol, San Francisco, CA
Charles Canter and Ronald E. LeFevre, U.S. Department of Justice, Washington, DC