Joaquim Paulo Da Cruz v. Immigration and Naturalization Service

Joaquim Paulo Da Cruz, a lawful permanent resident of the United States and a native of Portugal, appeals the Board of Immigration Appeals’ (“BIA”) decision reversing the original order of the Immigration Judge and ordering Da Cruz deported. On appeal, Da Cruz claims that the BIA did not have jurisdiction in this case because the Immigration and Naturalization Service (“INS”) filed an untimely appeal. We review de novo whether the BIA had jurisdiction to consider an untimely appeal. Montes v. Thornburgh, 919 F.2d 531, 534 (9th Cir.1990). We grant the petition for review and vacate the decision of the BIA for lack of jurisdiction.

I

The original decision of the Immigration Judge, dated July 27,1990, was mailed to the parties on July 31, 1990. A notice that any appeal must be filed on or before Monday, August 13, 1990 accompanied the decision which terminated the deportation proceedings against Da Cruz. The notice correctly stated the time limit for such appeals — thirteen days from mailing. See 8 C.F.R. §§ 3.38 (b) and 242.21(a) (1993). 8 C.F.R. §§ 3.39 and 242.20 (1993) provide that the decision of the Immigration Judge becomes final in the absence of a timely appeal. The INS…