## 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, Atto rney, Office of Immigration Litigation, Civil Division, U.S. Department of Just ice, 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 relatedmaterials, this panel has

determined unanimously that oral argument would notmaterially 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 ora l argument.

-2- Petitioner Galina Nahatchevska moves this court fora stay of removal pending disposition of this court’s review of the B oard 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 th e 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 m oot. The Immigration and Nationality Act requires a pet ition for review of a final order of removal to “be filed not later tha n 30 days after the date of the final order of removal.” 8 U.S.C. § 1252(b)(1). T he final order of removal was entered November 15, 2002, thus a petition for revi ew was required to be filed by December 16, 2002. Petitioner filed her petitio n 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 petitionwas nevertheless timely filed because of the three-day addition to the computatio n of time provided by Federal Rule of Appellate Procedure 26(c). We conclude that Rule 26(c) does not apply-3-

to extend the thirty-day time period computation un der § 1252(b)(1). By its terms, Rule 26(c) applies only “[w]hen a party is r equired 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) require s the filing of a petition for review within thirty days “after the date of the fi nal order of removal,” not thirty days after service of that order upon the parties. Analogous and sim ilar 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 cr oss-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 st atute). We conclude that the petition for review must be dismissed for failure to timely invoke this court’s jurisdiction. The fi ling 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 pre sent “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 deadlin e for filing his appeal and has-4-

received specific assurance by a judicial officer t hat this act has been properly done”). We DISMISS the petition for review for lack of juri sdiction and DENY the petition for stay of removal as moot.