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

                                                 FILED
                                                                            June 29, 2009
                                     No. 08-60471
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

PETRONILA RODRIGUEZ

                                                   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. A73 966 011


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Petronila Rodriguez, a native and citizen of El Salvador, petitions this
court for review of the denial by the Board of Immigration Appeals (BIA) of her
November 2007 motion to reopen her removal proceedings and to toll her
voluntary departure period. She argues that her removal proceedings should
have been reopened because counsel rendered ineffective assistance by failing
to establish her eligibility for cancellation of removal based upon the hardship
of her removal on her spouse. She also argues that the BIA erred in not tolling

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60471

her voluntary departure period during the pendency of her motion to reopen and
in not ruling on her motion to reopen before her voluntary departure period
expired.
       We do not have jurisdiction to review the BIA’s discretionary
determination that a petitioner does not qualify for relief from removal under
the hardship provisions of 8 U.S.C. § 1229b(b)(1)(D).                         See 8 U.S.C.
§ 1252(a)(2)(B)(i); Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004). We do
have jurisdiction to review constitutional claims and questions of law raised
upon a petition for review. § 1252(a)(2)(D).
       This court has assumed, without deciding, that an alien’s claim of
ineffective assistance may implicate due process concerns under the Fifth
Amendment. See Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006); Assaad v.
Ashcroft, 378 F.3d 471, 475-76 and n.2 (5th Cir. 2004). Because Rodriguez’s
claim of attorney ineffectiveness relates solely to her eligibility for discretionary
relief, however, her claim does not amount to a due process violation. Assaad,
378 F.3d at 474-76. Her petition for review of the denial of her motion to reopen
based upon her ineffective assistance claim is therefore denied for lack of
jurisdiction.     Id. at 476.      We also lack jurisdiction to review the BIA’s
discretionary decision not to sua sponte reopen Rodriguez’s removal proceedings.
See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir. 2004).
       The BIA was without authority to extend Rodriguez’s voluntary departure
period. See 8 U.S.C. § 1229c(b); Dada v. Mukasey, 128 S. Ct. 2307, 2316 (2008);
Banda-Ortiz v. Gonzales, 445 F.3d 387, 388, 390-91 (5th Cir. 2006).1 Rodriguez
did not seek to withdraw her request for voluntary departure prior to the


       1
         The Department of Justice’s recent amendments to regulations regarding voluntary
departure, effective January 20, 2009, apply prospectively only, not retroactively. See 8 C.F.R.
§ 1240.26(b)(3)(iii) and (e)(1); Voluntary Departure: Effect of a Motion To Reopen or Reconsider
or a Petition for Review, 73 Fed. Reg. 76,936, (Dec. 18, 2008). Thus, the new regulations do
not apply in the instant case.


                                               2
                                No. 08-60471

expiration of the voluntary departure period. See Dada, 128 S. Ct. at 2318-20.
Thus, the BIA’s denial of the motion to toll the voluntary departure period was
not error. Rodriguez provides no support for her conclusory argument that the
BIA should have ruled on her motion to reopen prior to the expiration of her
voluntary departure period. Accordingly, that argument is deemed waived as
inadequately briefed. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir.
2003).
      DISMISSED IN PART; DENIED IN PART




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