Lopez-Hernandez

MEMORANDUM ***

Ilda Lopez-Hernandez, a native and citizen of Mexico, petitions for review of a Board of Immigration Appeals’ (“BIA”) decision dismissing as untimely her appeal from an Immigration Judge’s (“LJ”) decision denying her applications for cancellation of removal and adjustment of status. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We review de novo the BIA’s determination that it lacked jurisdiction, see Da Cruz v. INS, 4 F.3d 721, 722 (9th Cir.1993), and we grant the petition for review.

The time limit for filing a notice of appeal with the BIA is mandatory and jurisdictional. Id. However, “[u]nder certain unique circumstances, an appellate tribunal may have jurisdiction to hear an appeal that was not filed within the prescribed time limits.” Hernandez-Rivera v. INS, 630 F.2d 1352, 1354 (9th Cir.1980). Such “unique circumstances” are present here, as Lopez-Hernandez paid additional postage for Express Mail Delivery, Second Day service five days before the deadline for appeal and the United States Post Office admitted its negligence resulted in a delivery that was over two months late.

Contrary to the government’s contention, Lopez-Hernandez was not required to…