F I L E D

United States Court of Appeals

Tenth Circuit

JAN 29 2003

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GALINA IVANOVNA

NAHATCHEVSKA,

Petitioner,

v.

JOHN ASHCROFT, Attorney General

for the United States,

Respondent.

No. 02-9593

PETITION FOR REVIEW OF A

DECISION OF THE BOARD OF IMMIGRATION APPEALS

(No. A74-887-040)

Submitted by:

Jeff Joseph, Esq., Denver, Colorado, 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.

PER CURIAM.
1 After examining the petition for review and related materials, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 

The case is therefore ordered submitted without oral argument. 

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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
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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) (emphasis added). 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 that

Rule 26(c) is not applicable to requirement that cross-appeal must be filed within

fourteen days from date first notice of appeal is filed); Haroutunian v. INS ,

87 F.3d 374, 377 (9th Cir. 1996) (holding that Rule 26(c) does not apply to filing

of petitions for review under former immigration statute).

 We conclude that the petition for review must be dismissed for failure

to timely invoke this court’s jurisdiction. The filing of a timely petition for

review is “mandatory and jurisdictional” and is “not subject to equitable tolling.”

Stone v. INS , 514 U.S. 386, 405 (1995). Nor does this case present “unique

circumstances” sufficient to excuse petitioner’s untimeliness. See Thompson v.

INS, 375 U.S. 384, 387 (1964); Osterneck v. Ernst & Whitney , 489 U.S. 169, 179

(1989) (noting that “ Thompson applies only where a party has performed an act

which, if properly done, would postpone the deadline for filing his appeal and has
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received specific assurance by a judicial officer that this act has been properly

done”).

We DISMISS the petition for review for lack of jurisdiction and DENY the

petition for stay of removal as moot.