Rodica Jurgeu v. Immigration and Naturalization Service; Nicolae Damacus v. Immigration and Naturalization Service

Rodica Jurgeu, Petitioner, v. Immigration and Naturalization
Service, Respondent. Nicolae Damacus, Petitioner, v.
Immigration and Naturalization Service, Respondent.
No. 94-1054, No. 94-1058 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
December 12, 1994, Submitted
January 3, 1995, Filed

Subsequent History: Reported in Table Case Format at: 45 F.3d 433

Prior History:

Petitions for Review of Orders of the Immigration and Naturalization Service. No. A28 505 126.

Counsel:

For RODICA JURGEU, Petitioner: Roberta F. Farrell, Kansas City, MO. For IMMIGRATION AND NATURALIZATION SERVICE, Respondent: Mark C. Walters, Assistant Director, Robert L. Bombaugh, Michele Y.F. Sarko, U.S. DEPARTMENT OF JUSTICE, Office of Immigration Litigation, Washington, DC.

Judges:

Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.

Opinion:

PER CURIAM. Rodica Jurgeu and her father, Nicolae Damacus, petition for review of a final decision of the Immigration and Naturalization Service (INS) summarily dismissing as untimely their appeals to the Board of Immigration Appeals (BIA). On September 4, 1992, the Immigration Judge (IJ) found petitioners deportable and denied their applications for asylum and withholding of deportation to their native Romania. A transmittal memorandum attached to the IJ's written decision informed petitioners that they had until September 17, 1992, to appeal. On September 15, 1992, petitioners paid the filing fees and filed their appeals with the INS Service office in Kansas City, Missouri. Thereafter, petitioners sent notices of appeal by certified mail to the Office for the Immigration Judge in Chicago, which received petitioners' appeals on September 22, 1992. INS regulations provide, in relevant part, that an "appeal shall be taken by filing [the notice of appeal and other required documents] with the Service office or Office of the Immigration Judge having administrative jurisdiction over the case, within the time specified in the governing sections of this chapter." 8 C.F.R. § 3.3(a) (emphasis added). We recently held in Atiqullah v. INS, 39 F.3d 896, *5 (8th Cir. 1994), that the "plain language of section 3.3(a) allows for the notice of appeal to be submitted to the 'INS Service office.'" Accord Vlaicu v. INS, 998 F.2d 758, 760 (9th Cir. 1993); see also United States v. Smith, 35 F.3d 344, 346 (8th Cir. 1994) ("ordinary usage of the word 'or' is disjunctive, indicating an alternative"). Consequently, by filing their notices of appeal on September 15 with the Kansas City INS Service office, petitioners timely appealed the IJ's decision. For the reasons stated, we reverse the BIA's dismissal of petitioners' appeals and remand for further proceedings.