                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JAN 17 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

OSCAR VASQUEZ-MATA,                             No.    16-73308

                Petitioner,                     Agency No. A201-243-859

 v.
                                                MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                          Submitted December 20, 2018**
                             San Francisco, California

Before: M. SMITH, NGUYEN, and BENNETT, Circuit Judges.

      Oscar Vasquez-Mata (“Petitioner”) seeks review of the Board of

Immigration Appeals’ (“BIA”) order dismissing his appeal of the denial of his

applications for asylum, withholding of removal, and protection under the

Convention Against Torture. The BIA issued its decision on July 22, 2016.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Petitioner did not petition for review until October 14, 2016—nearly three months

later. A “petition for review must be filed not later than 30 days after the date of

the final order of removal.” 8 U.S.C. § 1252(b)(1). The petition for review is

therefore untimely, and we lack jurisdiction. See Singh v. INS, 315 F.3d 1186, 1188

(9th Cir. 2003) (30-day deadline is “mandatory and jurisdictional”).

      Petitioner asks that we toll the deadline for filing his petition because he was

incarcerated at the time the BIA issued its decision. Our cases have recognized

only two circumstances under which we will exercise jurisdiction over an untimely

petition for review. First, we will allow a late filing “where there has been official

misleading [by the court or the BIA] as to the time within which to file a notice of

appeal.” Id. (quoting Hernandez-Rivera v. INS, 630 F.2d 1352, 1355 (9th Cir.

1980)) (alterations in original). Second, because a “petitioner should not be

penalized for the BIA’s failure to comply with the terms of the federal

regulations,” the “[t]ime for filing a review petition begins to run when the BIA

complies with the terms of federal regulations by mailing its decision to the

petitioner’s [or his counsel’s] address of record.” Id. (quoting Martinez-Serrano v.

INS, 94 F.3d 1256, 1259 (9th Cir. 1996)) (alterations in original).

      Neither situation applies here, and we cannot otherwise toll the time for

petitioner to file his petition for review. Accordingly, we dismiss the petition for

lack of jurisdiction.


                                           2
PETITION DISMISSED.




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