317 F.3d 1226 (10th Cir. 2003), 02-9593, Nahatchevska v. Ashcroft

Docket Nº02-9593.
Citation317 F.3d 1226
Party NameGalina Ivanovna NAHATCHEVSKA, Petitioner, v. John ASHCROFT, Attorney General for the United States, Respondent.
Case DateJanuary 29, 2003
CourtUnited States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1226

317 F.3d 1226 (10th Cir. 2003)

Galina Ivanovna NAHATCHEVSKA, Petitioner,

v.

John ASHCROFT, Attorney General for the United States, Respondent.

No. 02-9593.

United States Court of Appeals, Tenth Circuit

January 29, 2003

Submitted by: Jeff Joseph, Esq., Denver, CO, for Petitioner.

Robert D. McCallum, Jr., Assistant Attorney General, Civil Division, Emily Anne Radford, Assistant Director, Aviva L. Poczter, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington D.C., for Respondent.

Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and LUCERO, Circuit Judge.

Page 1227

PER CURIAM.

Petitioner Galina Nahatchevska moves this court for a stay of removal pending disposition of this court's review of the Board of Immigration Appeals' denial of her motion to reopen its final order of deportation.1 Respondent objects to the granting of a stay and urges dismissal of the underlying petition for review as untimely filed. Upon consideration, we dismiss the petition for review for lack of jurisdiction and deny the petition for stay as moot.

The Immigration and Nationality Act requires a petition for review of a final order of removal to "be filed not later than 30 days after the date of the final order of removal." 8 U.S.C. § 1252(b)(1). The final order of removal was entered November 15, 2002, thus a petition for review was required to be filed by December 16, 2002. Petitioner filed her petition for review on December 18, 2002.

Petitioner admits that her petition for review was not filed within the thirty-day time period but argues that the petition was nevertheless timely filed because of the three-day addition to the computation of time provided by Federal Rule of Appellate Procedure 26(c). We conclude that Rule 26(c) does not apply to extend the thirty-day time period computation under § 1252(b)(1). By its terms, Rule 26(c) applies only "[w]hen a party is required or permitted to act within a prescribed period after a paper is served on that party." Fed. R.App. P. 26(c). Section 1252(b)(1) requires the filing of a petition for review within thirty days "after the date of the final order of removal," not thirty days after service of that order upon the parties. Analogous and similar precedent rejects the notion that Rule 26(c) is applicable in these circumstances. Cf. Savage v. Cache Valley Dairy Ass'n, 737 F.2d 887, 888 (10th Cir. 1984) (holding...

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31 practice notes
  • Hydara v. Gonzales, 082107 MNDC, 07-CV-0941
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Minnesota
    • August 21, 2007
    ...See Stone v. INS, 514 U.S. 386, 405 (1995); Asere v. Gonzales, 439 F.3d 378, 380 (7th Cir. 2006); Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003) (per curiam). Hydara did not file this action until February 7, 2007, nearly eleven months after the deadline for filing a petitio......
  • G.S. v. Holder, 041510 FED10, 09-9526
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • April 15, 2010
    ...days after a final removal order is entered, compliance with which is "mandatory and jurisdictional." Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003) (quotation omitted). But the provision is silent with respect to petitions for review filed before the issuance of a......
  • 508 F.3d 1278 (10th Cir. 2007), 06-9505, Lorenzo v. Mukasey
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • November 20, 2007
    ...after the date of the final order of removal" also survived the enactment of 8 U.S.C. §1252(a)(2)(D). See Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003) ("The filing of a timely petition for review is mandatory and jurisdictional and is not subject to equitable...
  • 659 F.3d 1029 (10th Cir. 2011), 10-9569, Cordova-Soto v. Holder
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • October 17, 2011
    ...§ 1252(b)(1). We have construed the filing of a timely petition for review as mandatory and jurisdictional. See Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir.2003). This jurisdictional limitation within § 1252 therefore " survived the enactment of ... § 1252(a)(2)(D)." L......
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31 cases
  • Hydara v. Gonzales, 082107 MNDC, 07-CV-0941
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Minnesota
    • August 21, 2007
    ...See Stone v. INS, 514 U.S. 386, 405 (1995); Asere v. Gonzales, 439 F.3d 378, 380 (7th Cir. 2006); Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003) (per curiam). Hydara did not file this action until February 7, 2007, nearly eleven months after the deadline for filing a petitio......
  • G.S. v. Holder, 041510 FED10, 09-9526
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • April 15, 2010
    ...days after a final removal order is entered, compliance with which is "mandatory and jurisdictional." Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003) (quotation omitted). But the provision is silent with respect to petitions for review filed before the issuance of a......
  • 508 F.3d 1278 (10th Cir. 2007), 06-9505, Lorenzo v. Mukasey
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • November 20, 2007
    ...after the date of the final order of removal" also survived the enactment of 8 U.S.C. §1252(a)(2)(D). See Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003) ("The filing of a timely petition for review is mandatory and jurisdictional and is not subject to equitable...
  • 659 F.3d 1029 (10th Cir. 2011), 10-9569, Cordova-Soto v. Holder
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • October 17, 2011
    ...§ 1252(b)(1). We have construed the filing of a timely petition for review as mandatory and jurisdictional. See Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir.2003). This jurisdictional limitation within § 1252 therefore " survived the enactment of ... § 1252(a)(2)(D)." L......
  • Request a trial to view additional results