ORDER

LEWIS A. KAPLAN, District Judge.

By petition for a writ of habeas corpus, Courtney St. Christopher Bennett seeks to challenge a June 1997 decision of the Board of Immigration Appeals ("BIA"), which dismissed as untimely Bennett's appeal from an April 1997 deportation order entered by an Immigration Judge ("IJ"). Bennett contends that he is eligible for relief from deportation under Section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c).

The BIA dismissed petitioner's appeal as untimely because it was received by the BIA one day after the expiration of the 30 period established by the regulations. The 30-day period, however, is mandatory and jurisdictional, and the BIA did not err in dismissing the appeal. See Da Cruz v. INS, 4 F.3d 721, 722 (9th Cir 1993) (BIA lacked jurisdiction to consider appeal filed one day late); Matter of Gawaran, 20 I. N. Dec. 938, 939, 1995 WL 24857 (BIA 1995), review denied, 91 F.3d 1332 (9th Cir. 1996). Moreover, there is no inequity in enforcing the rule in this case. When the IJ issued the deportation order on April 7, 1997, he specifically advised Bennett of the 30-day rule and cautioned him that the notice of appeal had to be received by the BIA within the period in order to be timely. (D116, D121-22) Bennett, by his own account, inexplicably waited until April 23 to mail his notice of appeal. Thus, while the Postal Service certainly deserves no commendation for taking 15 days to deliver the notice of appeal, the fault lies with Bennett as well.

Even if Bennett's appeal had been timely filed, his appeal was without merit. For the reasons explained by the government (Resp. Mem. 17-20), Bennett was ineligible for a Section 212(c) waiver under the law the was in effect prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996. Bennett's contention that AEDPA § 440(d) may not properly be applied to him, while correct, is beside the point.

In recent correspondence to the Court, Bennett claims that the government has conceded that AEDPA § 440(d) was unconstitutionally applied to him. The government in fact proposed a stipulation to Bennett which, if adopted, would have vacated the dismissal of his appeal to the BIA, acknowledged that Section 440(d) of AEDPA is inapplicable to him, and remanded the matter to the BIA to determine whether Bennett was barred from seeking a discretionary waiver of deportability under Section 212(c) of the INA. Bennett, however, refused to enter into the stipulation.

The recital in the stipulation does get Bennett where he wants to go. Even if the stipulation had conceded that Section 440(d) of AEDPA had been applied unconstitutionally to Bennett — and it does not do so, at least explicitly — it would be immaterial. The fact remains that Bennett was ineligible for a Section 212(c) waiver even under pre-AEDPA law. Hence, any error by the IJ as to the reason for Bennett's ineligibility was immaterial. The fact remains that he was ineligible and that the deportation order was proper.

The petition for a writ of habeas corpus is dismissed. No substantial question having been raised, the Court denies a certificate of appealability and certifies that any appeal herefrom would not be taken in good faith for purposes of 28 U.S.C. § 1915.

SO ORDERED.