Nicolae Bonca v. Immigration and Naturalization Service , 16 F.3d 1218 ( 1994 )

16 F.3d 1218
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Nicolae BONCA, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 93-3774.

United States Court of Appeals, Sixth Circuit.

Feb. 1, 1994.

Before: JONES, NORRIS and SUHRHEINRICH, Circuit Judges.

ORDER

1

Petitioner seeks review of an order of the Board of Immigration Appeals (the "Board") reversing an immigration judge's grant of his request for voluntary departure and ordering him departed to Romania. The Immigration and Naturalization Service moves to dismiss the appeal for lack of jurisdiction. Petitioner opposes the motion to dismiss.

2

The Immigration and Nationality Act requires that a petition for review be filed within ninety days of a final order of deportation. 8 U.S.C. Sec. 1105a(a)(1). The ninety-day filing provision is mandatory and jurisdictional. Guirguis v. INS, 993 F.2d 508, 509 (5th Cir.1993); Amaral v. INS, 977 F.2d 33, 35 1st Cir.1992); Stajic v. INS, 961 F.2d 403, 404 (2d Cir.1992) (per curiam). This court lacks that authority to extend or enlarge the time for filing a petition for review. Rule 26(b), Fed.R.App.P.

3

The administrative record demonstrates that the decision of the Board was mailed to petitioner at his address of record on April 20, 1993. Consequently, the ninety-day filing period began to run on that day. See Karimian-Kaklaki v. INS, 997 F.2d 108, 111 (5th Cir.1993); Quedraogo v. INS, 864 F.2d 376, 378 (5th Cir.1989); Lee v. INS, 685 F.2d 343, 344 (9th Cir.1982) (per curiam). Although the petition for review was dated and mailed on July 19, 1993, the ninetieth-day following the issuance of the Board's order, it was not received by this court until July 20, 1993. A petition for review is not filed until its receipt by the court. Rule 25(a), Fed.R.App.P. The petition was not filed within ninety-days of the Board's order and thus cannot confer jurisdiction in this court.

4

It therefore is ORDERED that the motion to dismiss is granted.