Opinion
No. 07-60982 Summary Calendar.
October 17, 2008.
Tommy Douglas Stump, Stump Associates, Oklahoma City, OK, for Petitioner.
Thomas Ward Hussey, Director, James E. Grimes, U.S. Department of Justice, Office of Immigration Litigation Ben Franklin Station, Washington, DC, Kristi Barrows, U.S. Immigration Naturalization Service, Dallas, TX, for Respondent.
Petition for Review of an Order of the Board of Immigration Appeals, BIA No. A74 664 018.
Before GARWOOD, JOLLY and SOUTHWICK, Circuit Judges.
Jaime Rojo-Resendiz petitions for review of the final order of the Board of Immigration Appeals (BIA) denying his motion to reopen immigration proceedings. The BIA denied the motion to reopen on the ground that Rojo-Resendiz had overstayed his period of voluntary departure and therefore was statutorily ineligible for the relief sought. See 8 U.S.C. § 1229c(d). We review the BIA's denial of a motion to reopen for abuse of discretion. Banda-Ortiz v. Gonzales, 445 F.3d 387, 388 (5th Cir. 2006).
Rojo-Resendiz at no time sought to withdraw his request for voluntary departure and he states in his reply brief in this court that "Because Mr. Rojo only wishes to voluntary depart now, he is only challenging the issue of automatic tolling of the voluntary departure period."
Rojo-Resendiz argues that his timely filed motion to reopen tolled the voluntary departure period. Rojo-Resendiz's argument is without merit. See Dada v. Mukasey, ___ U.S. ___, 128 S.Ct. 2307, 2318-19, 171 L.Ed.2d 178 (2008); Banda-Ortiz, 445 F.3d at 391. In this matter, Rojo-Resendiz became ineligible to adjust his status because he failed to depart the United States within the 60-day voluntary departure period, which expired while his motion to reopen was pending. See § 1229c(d)(B). Accordingly, the BIA did not abuse its discretion in denying his motion to reopen. See Banda-Ortiz, 445 F.3d at 391; § 1229c(d)(B).
Rojo-Resendiz argues that the BIA erred in not ruling on his motion to stay or extend his voluntary departure period, which he filed contemporaneously with his motion to reopen. The applicable statutory and regulatory provisions, however, make clear that the BIA was without authority to extend the voluntary departure period beyond the 60 days already granted. See Dado, 128 S.Ct. at 2316; § 1229c(b); 8 C.F.R. § 1240.26(1). Accordingly, the BIA's implicit denial of the motion to stay or extend the voluntary departure period was not error.
PETITION FOR REVIEW DENIED.