FILED
United States Court of Appeals
Tenth Circuit
March 14, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
FLOR VARELA-SEBASTIAN,
Petitioner,
v. No. 08-9526
(Petition for Review)
MICHAEL B. MUKASEY,
Respondent.
ORDER AND JUDGMENT *
Before TACHA, EBEL, and BRISCOE, Circuit Judges.
The matter before the court is petitioner’s “Verified Petition for a Writ of
Habeas Corpus and Complaint for Declaratory and Injunctive Relief and Stay of
Removal” (Petition). Petitioner asserts that she is currently in the custody of the
U.S. Immigration and Customs Enforcement Agency in Aurora, Colorado, and
that her removal to Mexico is imminent. Invoking our jurisdiction under
28 U.S.C. §§ 1331 (federal question), 1361 (mandamus), 1651 (All Writs Act),
*
After examining the petition and exhibits filed, 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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
2201 (declaratory judgment), and 2241 (habeas), she claims that respondent’s
conduct has deprived her of due process. She requests a stay of removal, release
from custody, and an order directing the Immigration Court to conduct a merits
hearing on her claim of United States citizenship.
Subject to certain exceptions not relevant here, a petition for review is the
exclusive means of challenging an order of removal in this court. See 8 U.S.C.
§ 1252(a)(5). Although not styled as a petition for review of the underlying order
of removal, the Petition seeks just that—an order directing the Immigration Court
to conduct a merits hearing on her claim of citizenship, which, according to
petitioner, was considered and rejected by an immigration judge in 2000. The
Board of Immigration Appeals dismissed petitioner’s appeal from that decision in
2002.
A “petition for review must be filed not later than 30 days after the date of
the final order of removal.” Id., § 1252(b)(1). “The filing of a timely petition for
review is mandatory and jurisdictional and is not subject to equitable tolling.”
See Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003) (per curiam)
(quotation omitted). Furthermore, petitioner has not presented the type of unique
circumstances that might excuse her untimely filing. See id. The present Petition
is untimely, and therefore we lack jurisdiction, even to the extent petitioner raises
constitutional or statutory claims. See Lorenzo v. Mukasey, 508 F.3d 1278, 1281
-2-
& n.4 (10th Cir. 2007). Accordingly, the Petition is dismissed for lack of
jurisdiction, and petitioner’s request for a stay of removal is denied as moot.
Entered for the Court
PER CURIAM
-3-