          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                               February 12, 2009
                               No. 08-60096
                             Summary Calendar                Charles R. Fulbruge III
                                                                     Clerk

BISI AKINSOWON

                                           Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL

                                           Respondent


                    Petition for Review of an Order of the
                       Board of Immigration Appeals
                            BIA No. A74 598 257


Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
      Bisi Akinsowon petitions for review of the final order of the Board of
Immigration Appeals (BIA) denying her motion to reopen immigration
proceedings.    The BIA denied the motion to reopen on the ground that
Akinsowon had overstayed her period of voluntary departure and therefore was
statutorily ineligible for the relief sought. See 8 U.S.C. § 1229c(d). We review




      *
      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should not be published and is not precedent except under the limited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. 08-60096

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).
      Akinsowon argues that her timely motion to reopen avoided imposition of
the § 1229c(d)(1)(B) bar to eligibility for adjustment of status. She further
argues that her statutory right to adjustment and the merit of her adjustment
application trumps the § 1229c(d)(1)(B) bar. Akinsowon’s argument is without
merit. See Dada v. Mukasey, 128 S. Ct. 2307, 2318-19 (2008).1 In this matter,
Akinsowon became ineligible to adjust her status because she failed to depart
the United States within the 60-day voluntary departure period, which expired
while her motion to reopen was pending. See § 1229c(d)(B). Accordingly, the
BIA did not abuse its discretion in denying her motion to reopen.            See
Banda-Ortiz, 445 F.3d at 391; § 1229c(d)(B).
      PETITION FOR REVIEW DENIED.




      1
         We note that, after Dada was decided, a new rule was promulgated,
effective January 20, 2009. 8 C.F.R. § 1240.26(e)(1)(2009). Under this new rule,
a grant of voluntary departure is automatically terminated by the filing of a
motion to reopen or reconsider prior to the expiration of the time for departure.
Id. However, because this new rule, by its own terms, is not to be applied
retroactively, it does not inure to Akinsowon’s benefit here. See Voluntary
Departure: Effect of a Motion to Reopen or Reconsider or a Petition for Review,
73 Fed. Reg. 76927, 76937 (Dec. 18, 2008)(stating that the new rule is not to be
applied retroactively).

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