In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 04-60971

______________

JAMAL MOORANI,

Petitioner,

VERSUS

ALBERTO R. GONZALES,

UNITED STATES ATTORNEY GENERAL,

Respondent.

_________________________

Petition for Review of an Order

of the Board of Immigration Appeals

m A73 111 729

_________________________

Before KING, SMITH, and BENAVIDES, 

Circuit Judges.

PER CURIAM:

*

Jamal Moorani petitions for review of the

decision of the Board of Immigration Appeals

(“BIA”) finding him statutorily ineligible for

adjustment ofstatus. We affirm based on Banda-Ortiz v. Gonzales, 445 F.3d 387 (5th Cir.

2006).

Moorani is a native and citizen of Pakistan

who entered the country illegally on or around

November 1, 1990. The Attorney General initiated removal proceedings on October 31,

1997. Moorani conceded removability but requested asylum and withholding of removal

and in the alternative, voluntary departure.

After a hearing on the merits, the immigration

* Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

F I L E D

May 26, 2006

Charles R. Fulbruge III

Clerk
2

judge (“IJ”) denied asylum but on August 20,

2000, granted voluntary departure, requiring

Moorani to leave the country within sixty

days1or forfeit certain forms of discretionary

relief from removal, including adjustment of

status.2

Moorani appealed, which automatically

tolled the running of the voluntary departure

period.3 While his appeal was pending, Miraj

Wholesale (“Miraj”) in Houston offered Moorani full-time employment. Miraj filed an

Immigrant Petition for Alien Worker, which

was approved on February 4, 2002.

The BIA dismissed the appeal on April 8,

2002, and granted Moorani thirty additional

days’ departure time.4 On May 8, the final day

of the departure period, Moorani filed a motion with the BIA to reopen removal proceedings and remand to the IJ to apply for adjustment of status, based on the approved petition.5 The Attorney General argued that the

motion should be denied because Moorani had

overstayed the reinstated departure period and

was therefore ineligible for adjustment. On

October 8, the BIA granted the motion. Although noting the Attorney General’s argument, the BIA stated that “the . . . district

director, undersome circumstances, maygrant

a nunc pro tunc extension of voluntary departure, which hasthe effect of not only extending

an alien’s voluntary departure time but also

restoring voluntary departure to the date on

which it expired.”

On remand, the IJ permitted Moorani to file

for an extension, but on August 19 the district

director denied the request.6 The IJ then 1 Permission to depart the United States voluntarily at the conclusion of removal proceedings

“shall not be valid for a period exceeding 60 days.”

8 U.S.C. § 1229c(b)(2).

2 The voluntary departure statute provides civil

penalties, including “ineligib[ility] for a period of

10 years for any further relief” from removal under, inter alia, 8 U.S.C. § 1229b, which governs

adjustment ofstatus, for aliens who fail to leave the

United States within the time specified. 8 U.S.C.

§ 1229c(d). 

3

See Matter of Villegas Aguirre, 13 I.&N.

Dec. 139, 140 (BIA 1969) (holding that a timely

appeal “tollsthe running of the voluntary departure

authorization.”); Matter of Chouliaris, 16 I.&N.

Dec. 168, 170 (BIA 1977) (affirming Aguirre to

the extent that a “grant of voluntary departure

made by an immigration judge shall not be

jeopardized by taking an appeal”).

4

See Chouliaris, 16 I.&N. Dec. at 170 (modifying Aguirre to hold that where the IJ initially

granted more than 30 days’ departure time and that

(continued...)

4

(...continued)

period has expired, “the respondent will be given

30 days from the date of our decision in which to

depart voluntarily”).

5 An alien ordinarily “may file one motion to

reopen [removal] proceedings[.]” 8 U.S.C.

§ 1229a(c)(7)(A). “The motion to reopen shall

state the new facts that will be proven at a hearing

to be held if the motion is granted, and shall be

supported by affidavits or other evidentiary material.” Id. § 1229a(c)(7)(B). “[T]he motion to reopen shall be filed within 90 days of the date of

entry of a final administrative order of removal.”

Id. § 1229a(c)(7)(C)(i).

6 Because the district director ultimately denied

Moorani’s request, we need not decide whether he

would in fact have the authority to issue the

extension contemplated by the BIA. Compare 8

C.F.R. § 1240.26(f) (“Authority to extend the time

within which to depart voluntarily specified

(continued...)
3

issued a brief oral opinion stating that the IJ

lacked jurisdiction over Moorani’s application

for adjustment of status because Moorani had

failed to comply with the voluntary departure

order. The BIA affirmed without written

opinion; therefore, the IJ’s opinion becomes

the basis for this court’s review. Soadjede v.

Ashcroft, 324 F.3d 830, 831-32 (5th Cir.

2003).

Moorani argues that the IJ erred because

(1) his motion to reopen on May 8 effectively

tolled the voluntary departure period pending

decision by the BIA, and (2) the BIA’s grant

of his motion and remand to the IJ vacated the

underlying voluntary departure order, erasing

the requirement that Moorani leave the country by a certain date or be subject to civil penalties.7 The AttorneyGeneral argues that both

tolling and vacatur would undermine the statutory scheme, which sets strict conditions (including a sixty-day limit) on aliens who have

been granted the privilege of voluntary departure.

In Banda-Ortiz, 445 F.3d at 391, we declined to read into the voluntary departure

statute “the requirement that the BIA automatically toll an alien’s voluntary departure

period during the pendency of a motion to reopen.” Banda-Ortiz disposes of Moorani’s

first argument. Because tolling was unavailable, Mooranibecame ineligible for anyfurther

relief from removal after his voluntary

departure period expired on May 8. A fortiori,

we need not consider whether the BIA’s decision to grant his motion vacated the underlying departure order and allowed Moorani to

pursue his motion on the merits before the IJ.

Under Banda-Ortiz, the grant of the motion

itself was untimely, and the agency lacked any

further jurisdiction over Moorani’s case.

The petition for review is DENIED.

6

(...continued)

initially by an [IJ] or the [BIA] is only within the

jurisdiction of the district director, the Deputy Executive AssociateCommissioner for Detention and

Removal, or the Director of the Office of Juvenile

Affairs.”) and Banda-Ortiz, 445 F.3d at 388 n.2

(“Although [petitioner] filed his motion . . . two

days after his voluntary departure period expired,

the INS granted a two-day nunc pro tunc

extension, thereby rendering the motion timely.”)

with 8 C.F.R. § 1240.26(f) (“In no event can the

total period of time, including any extension, exceed . . . 60 days.”).

7 The IJ’s opinion does not specify whether

Moorani is ineligible for relief because one or both

of these arguments are in error. It states, however,

that “the respondent is not eligible for any form of

relief for ten years from the May 2, 2002 [sic]

deadline of the BIA’s April 8, 2002 ruling.”

Therefore, we may assume, as the basis for our

review, that the IJ considered theBIA to bewithout

power to grant Moorani’s motion on October 8

once his request for nunc pro tunc extension was

7

(...continued)

denied.