## In the



# United States Court of Appeals for the Fifth Circuit

_______________ 

### m 04-60971

______________



### J AMAL 

### M OORANI 

### , Petitioner,

VERSUS


### ALBERTO 

### R. G ONZALES 

### , U NITED S TATES ATTORNEY G ENERAL , 

### Respondent.



### _________________________ Peti tion for Review of an Order of the Board of Immigration Appeals 

### m A73 111 729

_________________________

Before K

ING , S MITH , and B ENAVIDES , Circuit Judges.

P ER C URIAM : *
Jamal Moorani peti

tion s fo r review of the decision of the Board of Im migration Appeals (“BIA”) finding hi m statutorily ineligible fo r adjustment of status. We affirm based on B anda-Ortiz v. Gonzales , 445 F. 3d 387 (5th Ci r. 2006).
Moorani is a native and citizen of Pakistan who entered th e country illegally on or around November 1, 1990. The Attorney General initi ated removal proceedings on October 31, 1997. Moorani conceded removability but requested asylum and withholding of removal and in the alt ernative, voluntar y departure. Aft er a hearing on th e merit s, the immigrat io n * Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion s hould not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

## F I L E D May 26, 2006 Charles R. Fulbruge III Clerk2

judge (“IJ”) denied asylum but on August 20, 20 00, granted vol

untary departure, requi

ri ng Moorani to leave the country wit hin sixt y days 1 or fo rfeit certai

n fo rms 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 Who le sale (“Miraj”) in Houston offered Moorani full-t ime employment

. Miraj filed an Im migrant P etition for Alien Worker, which was approved on February 4, 2002.
The BIA dism

issed the appeal on April 8, 2002, and granted Moorani thirty additional days’ departure ti

me. 4 On May 8, the final day of the departure period, Moorani filed a mo

tion wit h the BIA to reopen removal proceedings and remand to the IJ to apply fo r adjustment of status, based on the approved peti

tion. 5 The Attorney General argued that t he
mo tion should be denied because Moorani had overstayed the reinstated departure period and was therefore i

neligible fo r adjustment. On October 8, the BIA granted the motion. Altho ugh noti

ng the At torney General’s argument , the BIA stated that “t he

. . . district director, under some circumstances, may grant a nunc pro tunc extension of voluntary departure, which has the effect of not only extending
an alien’s voluntary departure ti me but also restori ng voluntary departure to the date on which it expired.”
On remand, th e IJ permitted Moorani to file fo r an extension, but on August 19 th e 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 of10 years for any further relief” from removal under , i nter alia , 8 U.S.C. § 1229b, which governs adjustment of status, for aliens who fail to leave the United States within the time specified. 8 U.S.C. § 1229c(d).

3 See Mat ter of Villegas Aguirre , 13 I.&N. Dec. 139, 140 (BIA 1969) (holding that a timely appeal “tolls the running of the voluntary departure author i zation.”); Matter of Chouliaris , 16 I.&N. Dec. 168, 170 (BIA 1977) (affirming Aguirre to the extent that a “grant of voluntary departure
ma de by an immigration judge s hall not be jeopardized by taking an appeal”).

4 See Chouliaris , 16 I.&N. Dec. at 170 (modifying Aguirre to hold th at where the IJ initially granted mor e 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 ordinari ly “may file one motion to
re open [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 shal l be supported by affidavits or other evidentiary material.” I d. § 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 contempla ted by the BIA. C ompare 8 C.F.R. § 1240.26(f) (“Authority to extend the time within which to depart voluntarily specified (continued...)3

issued a brief oral opi

nio n stati ng th at the IJ lacked jurisdiction over Moorani ’s application fo r adjustment of status because Moorani had failed t o com

ply wit h the voluntary departure ord er. Th e BIA affirmed without written opi nio n; therefore , th e IJ’s opinion becomes the basis fo r this court’s review. Soadjede v. Ashcroft , 324 F.3d 8 30, 831-32 (5th Ci r. 2003).
Moorani argues that the IJ erred because (1) his mo tion to reopen on May 8 effectively tolled the voluntary departure period pending decision by the BIA, and (2) the BIA’s grant of his mo tion and remand to the IJ vacated the underlying voluntary departure order, erasing the requirement that Moorani leave the country by a certai

n date or be subject to civil penalt ies. 7 The Attorney General argues that both tolling and vacatur would undermine th e statutory sch eme, which sets strict conditions (including a sixt y-day limit ) on aliens who have been granted th e pri

vilege of voluntary departure.
In Banda-Ortiz , 445 F.3 d at 391, we decli ned to read i

nt o th e voluntary departure statute “t he requirement that th e BIA automat ically toll an alien ’s vol untary departure period duri

ng th e pendency of a mo tion to reopen.” Banda-Ortiz d isposes of Moorani ’s fir st argument. Because tolling was unavailable, Moorani became ineligible fo r any further relief from removal aft er hi s voluntary departure period expired on May 8. A fortiori , we need not consider whether th e BIA’s decisio n to grant his mo tion vacated th e underlying departure order and allo w ed Moorani to pursue his motion on the merits before the IJ. Under Banda-Ortiz , the grant of the mo tion it self was untimely, and th e 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 Associate Commissioner 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 re lief because one or both of these arguments are in error. It states, however, that “the re spondent is not eligible for any form of
re lief 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 the BIA to be without power to grant Moorani’s motion on October 8
once his re quest for n unc pro tunc extension was 7 (...continued) denied.