United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 30, 1998 Decided February 27, 1998
No. 97-1047
Tsehaynesh Asfiha Hadera,
Petitioner
v.
Immigration & Naturalization Service,
Respondent
On Petition for Review of an Order of the
United States Immigration and Naturalization Service
David Goren argued the cause and filed the briefs for
petitioner.
Laura A. Smith, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the brief were
Frank W. Hunger, Assistant Attorney General, and Christo-
pher C. Fuller, Senior Litigation Counsel. Michael P. Linde-
mann, Assistant Director, entered an appearance.
Before: Wald, Tatel and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: Petitioner seeks review of the Board
of Immigration Appeals' denial of her application for political
asylum. Because she failed to file her petition within the
period required by law, we dismiss it for lack of jurisdiction.
I
A native and citizen of Eritrea, petitioner Tsehaynesh
Asfiha Hadera entered the United States in October 1988 as a
nonimmigrant visitor authorized to stay six months. Because
Hadera never left the country as required by the terms of her
visa, the Immigration and Naturalization Service issued an
order to show cause in June 1994 why she should not be
deported. Conceding deportability, Hadera sought political
asylum. Alternatively, she sought withholding of deportation
or voluntary departure.
Testifying before an Immigration Judge in support of her
asylum application, Hadera explained that she grew up in the
portion of Ethiopia that became the independent country of
Eritrea in May 1993, that her husband--a supporter of the
Eritrean independence movement--was arrested and impris-
oned for his political activities, and that the beatings he
received in prison eventually caused his death. She further
testified that because she continued her husband's political
activities, Ethiopian authorities imprisoned her for six
months, beating her so severely that her right arm remains
permanently disabled. Hadera testified finally that six
months after her release from prison--and after one other
short period of incarceration--she came to the United States,
leaving her entire family in Ethiopia. Acknowledging that
the movement she supported succeeded in establishing an
independent Eritrean state, Hadera nevertheless argued that
her persecution had been so severe that she should not be
forced to return.
The Immigration Judge recognized that Hadera was perse-
cuted for her political views. Because he also found that "no
prospect of future persecution exists given the fact that
[Hadera's] political views ultimately prevailed and the politi-
cal organization she supported has succeeded in establishing
an independent country of Eritrea" and that Hadera "will
more likely be seen as a heroine than an object for potential
persecution if returned to Eritrea," the Immigration Judge
denied her asylum application as a matter of discretion, see 8
U.S.C. s 1158(a) (1994) ("[T]he alien may be granted asylum
in the discretion of the Attorney General if the Attorney
General determines that such alien is a refugee within the
meaning of section 1101(a)(42)(A) of this title.") (amended
1996). The Immigration Judge also denied Hadera's applica-
tion for withholding of deportation.
Affirming the Immigration Judge and emphasizing that
Hadera would face no persecution in the now-independent
Eritrea where her remaining family members still reside, the
Board of Immigration Appeals issued a final order of deporta-
tion on November 20, 1996, permitting Hadera to depart
voluntarily within thirty days of the date of the order. On
December 13, Hadera asked the district director for an
extension of her voluntary departure time. Denying this
request on January 14, 1997, the district director noted on
what appears to be the back of the rejection letter that "Ms.
Hadera may file a petition for review within 90 days of the
Board's decision." On January 23, 1997, Hadera filed a
petition for review in this court, arguing that the Board had
abused its discretion by denying her application for asylum.
II
Not mentioned by the parties in their principal briefs, but
critical to whether we even have jurisdiction over Hadera's
petition, section 309(c)(4)(C) of the recently-enacted Illegal
Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (1996), as
amended by Act of Oct. 11, 1996, Pub. L. No. 104-302, 110
Stat. 3656 (1996) (codified in scattered sections of the U.S.C.)
("IIRIRA"), requires that a "petition for judicial review must
be filed not later than 30 days after the date of the final order
of exclusion or deportation." Id. s 309(c)(4)(C), 110 Stat. at
3009-626. While most of IIRIRA did not take effect until
April 1, 1997, see id. s 309(a), 110 Stat. at 3009-625, it
contained a set of transitional rules governing judicial review
of all final orders of deportation and exclusion entered more
than thirty days after IIRIRA's enactment, see id.
s 309(c)(4), 110 Stat. at 3009-626. Among these rules is
section 309(c)(4)(C)'s thirty-day requirement for filing peti-
tions for review of Board decisions. Even though this rule
clearly governs our review of the Board's final order of
deportation in this case (the Board issued the order on
November 20, over thirty days after President Clinton signed
IIRIRA), Hadera filed her petition on January 23, 1997, more
than a month after the thirty-day deadline had passed.
Because jurisdiction cannot be waived, see Floyd v. District
of Columbia, 129 F.3d 152, 155 (D.C. Cir. 1997) ("[J]urisdic-
tion cannot be waived and we have an independent obligation
to assure ourselves of jurisdiction, even when the parties fail
to challenge it."), we directed the parties to be prepared at
oral argument to address the jurisdictional issue. In a sup-
plemental brief and then again at oral argument, the INS
argued that we lack jurisdiction. Conceding that the thirty-
day rule applies, Hadera argued that we nevertheless have
jurisdiction because the thirty-day period did not begin run-
ning until the district director denied her motion for an
extension of voluntary departure time on January 14, and
because the district director informed her on that day that
she could file her petition for review within ninety days of the
Board's decision, thereby estopping the agency from now
claiming that her petition was untimely.
Neither of Hadera's arguments has merit. Filing a volun-
tary departure extension request does not extend the time
available to petition for review of a final order of deportation.
See Foti v. INS, 375 U.S. 217, 219 n.1 (1963) ("The granting
of voluntary departure relief does not result in the alien's not
being subject to an outstanding final order of deportation.");
Karimian-Kaklaki v. INS, 997 F.2d 108, 112 (5th Cir. 1993)
("The privilege of voluntary departure granted to petitioners
is irrelevant to the finality (and thus appealability) of the BIA
order."); see also 8 C.F.R. s 243.1 (1997) ("[A]n order of
deportation, including an alternate order of deportation cou-
pled with an order of voluntary departure ... shall be final as
of the date of the Board's decision."). Although INS counsel
was unable to explain the district director's notation that
Hadera could file a petition for review within ninety days of
the Board's decision, we need not decide whether such a
statement could affect our jurisdiction because the notation,
made about three weeks after the statutory deadline had
passed, could not possibly have caused her late filing. We
therefore lack jurisdiction over Hadera's petition. See Ma-
yard v. INS, 129 F.3d 438, 439 (8th Cir. 1997) (dismissing for
lack of jurisdiction appeal filed eighty-four days after final
order); Narayan v. INS, 105 F.3d 1335, 1335 (9th Cir. 1997)
(dismissing for lack of jurisdiction petition for review filed
forty-seven days after final order).
During oral argument, the INS identified a second problem
with Hadera's petition: Section 309(c)(4)(D) of IIRIRA states
that "the petition for review shall be filed with the court of
appeals for the judicial circuit in which the administrative
proceedings before the special inquiry officer or immigration
judge were completed." IIRIRA s 309(c)(4)(D), 110 Stat. at
3009-626. Because the Immigration Judge conducted Had-
era's hearing in Arlington, Virginia, Hadera should have filed
her petition in the Fourth Circuit.
Hadera has thus filed her petition not only too late, but also
in the wrong court. When we asked Hadera's counsel at oral
argument whether we should dismiss the petition or transfer
it to the Fourth Circuit, he urged transfer so he would have
"another shot." The INS told us that the answer might turn
on whether section 309(c)(4)(D) establishes a jurisdictional or
a venue requirement, but we think that makes no difference
in this case. Although we possess statutory authority to
transfer cases over which we lack jurisdiction "to any other
such court in which the action or appeal could have been
brought at the time it was filed," 28 U.S.C. s 1631 (1994), as
well as inherent authority to transfer cases over which we
lack venue if "in the interest of justice," Alexander v. Com-
missioner, 825 F.2d 499, 502 (D.C. Cir. 1987), neither is
appropriate here because Hadera's petition would have been
untimely even if filed in the Fourth Circuit, see Oum v. INS,
613 F.2d 51, 53 (4th Cir. 1980) (holding that court lacks
jurisdiction over petition filed after statutory deadline). Had-
era's petition is dismissed.
So ordered.