                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 December 19, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-61095
                          Summary Calendar


JAYESH DAYA MOTI,

                                    Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

                                    Respondent.

                        --------------------
               Petition for Review of an Order of the
                    Board of Immigration Appeals
                         BIA No. A78 139 340
                        --------------------

Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Jayesh Daya Moti petitions for review of the final order of

the Board of Immigration Appeals (BIA) that denied his motion to

reopen immigration proceedings.   Moti married an American citizen

who filed two I-130 petitions naming Moti as the beneficiary.

The first I-130 petition was denied; the second I-130 petition

was pending when Moti moved to reopen and formed the basis for

that motion.

     The Board of Immigration Appeals (BIA) denied the motion to

reopen on grounds that Moti had overstayed his period of

     *
       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this opinion should not be published and is not precedent except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.
                           No. 05-61095
                                -2-

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), petition

for cert. filed (Sept. 28, 2006) (No. 06-477); Pritchett v. INS,

993 F.2d 80, 83 (5th Cir. 1993).

     Moti argues that his timely-filed motion to reopen tolled

the voluntary departure period.    This court has rejected a

tolling argument such as the one advanced by Moti.     See Banda-

Ortiz, 445 F.3d at 391 (“declin[ing] to read into § 1229c(d) the

requirement that the BIA automatically toll an alien’s voluntary

departure period during the pendency of a motion to reopen”).        In

this matter, Moti 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).

     Moti argues that the BIA abused its discretion by not ruling

on his motion to stay 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

§ 1229c(b); 8 C.F.R. § 1240.26(f).    Accordingly, the BIA’s
                           No. 05-61095
                                -3-

implicit denial of the motion to stay the voluntary departure

period was not an abuse of its discretion.

     Moti contends that his motion to reopen should be remanded

to the BIA because administrative delays prejudiced him,

resulting in the denial of his motion to reopen without a

consideration of its merits.   To the extent that Moti complains

of delays that occurred prior to the filing of his motion to

reopen, we are without jurisdiction to review the issue because

Moti did not raise the issue before the BIA.    See Wang v.

Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001).

     Although the wheels of bureaucracy often grind slowly,

see Ahmed v. Gonzales, 447 F.3d 433, 438 (5th Cir. 2006), undue

administrative delay did not cause the summary dismissal of

Moti’s motion to reopen.   Moti filed the motion to reopen with

less than one week remaining in the 60-day voluntary departure

period.   Voluntary departure confers numerous benefits on an

alien, but it is not without costs, including ineligibility for

certain forms of relief if the alien does not timely depart.

Banda-Ortiz, 445 F.3d at 389-90.   Moti cannot avail himself of

the benefits of voluntary departure with bearing the costs

attendant to his failure to timely depart.     See id.

     Finally, Moti argues that the immigration judge

discriminated against him at his hearing and thereby denied his

right to equal protection, and that the immigration judge

violated his due process right to a fair hearing by not allowing
                           No. 05-61095
                                -4-

his counsel to rebut allegations and enter evidence into the

record.   These claims are unexhausted, and this court is

therefore without jurisdiction to consider them.   See Wang, 260

F.3d at 452; Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).

     PETITION FOR REVIEW DENIED.
