                                                                              United States Court of Appeals
                                                   In the                              Fifth Circuit

                                                                                   FILED
                          United States Court of Appeals                          May 26, 2006
                                        for the Fifth Circuit
                                             _______________                 Charles R. Fulbruge III
                                                                                     Clerk
                                                m 04-60971
                                              ______________




                                            JAMAL MOORANI,

                                                                            Petitioner,

                                                  VERSUS

                                        ALBERTO R. GONZALES,
                                  UNITED STATES ATTORNEY GENERAL,

                                                                            Respondent.

                                   _________________________

                                      Petition for Review of an Order
                                   of the Board of Immigration Appeals
                                             m A73 111 729
                                      _________________________


Before KING, SMITH, and BENAVIDES,                      (“BIA”) finding him statutorily ineligible for
  Circuit Judges.                                       adjustment of status. We affirm based on Ban-
                                                        da-Ortiz v. Gonzales, 445 F.3d 387 (5th Cir.
PER CURIAM:*                                            2006).

   Jamal Moorani petitions for review of the                Moorani is a native and citizen of Pakistan
decision of the Board of Immigration Appeals            who entered the country illegally on or around
                                                        November 1, 1990. The Attorney General ini-
                                                        tiated removal proceedings on October 31,
   *
                                                        1997. Moorani conceded removability but re-
     Pursuant to 5TH CIR. R. 47.5, the court has        quested asylum and withholding of removal
determined that this opinion should not be pub-
                                                        and in the alternative, voluntary departure.
lished and is not precedent except under the limited
                                                        After a hearing on the merits, the immigration
circumstances set forth in 5TH CIR. R. 47.5.4.
judge (“IJ”) denied asylum but on August 20,                 of the departure period, Moorani filed a mo-
2000, granted voluntary departure, requiring                 tion with the BIA to reopen removal proceed-
Moorani to leave the country within sixty                    ings and remand to the IJ to apply for adjust-
days1 or forfeit certain forms of discretionary              ment of status, based on the approved peti-
relief from removal, including adjustment of                 tion.5 The Attorney General argued that the
status.2                                                     motion should be denied because Moorani had
                                                             overstayed the reinstated departure period and
    Moorani appealed, which automatically                    was therefore ineligible for adjustment. On
tolled the running of the voluntary departure                October 8, the BIA granted the motion. Al-
period.3 While his appeal was pending, Miraj                 though noting the Attorney General’s argu-
Wholesale (“Miraj”) in Houston offered Moor-                 ment, the BIA stated that “the . . . district
ani full-time employment. Miraj filed an                     director, under some circumstances, may grant
Immigrant Petition for Alien Worker, which                   a nunc pro tunc extension of voluntary depar-
was approved on February 4, 2002.                            ture, which has the effect of not only extending
                                                             an alien’s voluntary departure time but also
   The BIA dismissed the appeal on April 8,                  restoring voluntary departure to the date on
2002, and granted Moorani thirty additional                  which it expired.”
days’ departure time.4 On May 8, the final day
                                                                On remand, the IJ permitted Moorani to file
                                                             for an extension, but on August 19 the district
   1
      Permission to depart the United States volun-          director denied the request.6 The IJ then
tarily at the conclusion of removal proceedings
“shall not be valid for a period exceeding 60 days.”
                                                                4
8 U.S.C. § 1229c(b)(2).                                          (...continued)
                                                             period has expired, “the respondent will be given
   2
     The voluntary departure statute provides civil          30 days from the date of our decision in which to
penalties, including “ineligib[ility] for a period of        depart voluntarily”).
10 years for any further relief” from removal un-
                                                                5
der, inter alia, 8 U.S.C. § 1229b, which governs                   An alien ordinarily “may file one motion to
adjustment of status, for aliens who fail to leave the       reopen [removal] proceedings[.]”          8 U.S.C.
United States within the time specified. 8 U.S.C.            § 1229a(c)(7)(A). “The motion to reopen shall
§ 1229c(d).                                                  state the new facts that will be proven at a hearing
                                                             to be held if the motion is granted, and shall be
   3
     See Matter of Villegas Aguirre, 13 I.&N.                supported by affidavits or other evidentiary ma-
Dec. 139, 140 (BIA 1969) (holding that a timely              terial.” Id. § 1229a(c)(7)(B). “[T]he motion to re-
appeal “tolls the running of the voluntary departure         open shall be filed within 90 days of the date of
authorization.”); Matter of Chouliaris, 16 I.&N.             entry of a final administrative order of removal.”
Dec. 168, 170 (BIA 1977) (affirming Aguirre to               Id. § 1229a(c)(7)(C)(i).
the extent that a “grant of voluntary departure
                                                                6
made by an immigration judge shall not be                        Because the district director ultimately denied
jeopardized by taking an appeal”).                           Moorani’s request, we need not decide whether he
                                                             would in fact have the authority to issue the
   4
     See Chouliaris, 16 I.&N. Dec. at 170 (mod-              extension contemplated by the BIA. Compare 8
ifying Aguirre to hold that where the IJ initially           C.F.R. § 1240.26(f) (“Authority to extend the time
granted more than 30 days’ departure time and that           within which to depart voluntarily specified
                                    (continued...)                                                 (continued...)

                                                         2
issued a brief oral opinion stating that the IJ             tolling and vacatur would undermine the statu-
lacked jurisdiction over Moorani’s application              tory scheme, which sets strict conditions (in-
for adjustment of status because Moorani had                cluding a sixty-day limit) on aliens who have
failed to comply with the voluntary departure               been granted the privilege of voluntary depar-
order. The BIA affirmed without written                     ture.
opinion; therefore, the IJ’s opinion becomes
the basis for this court’s review. Soadjede v.                  In Banda-Ortiz, 445 F.3d at 391, we de-
Ashcroft, 324 F.3d 830, 831-32 (5th Cir.                    clined to read into the voluntary departure
2003).                                                      statute “the requirement that the BIA auto-
                                                            matically toll an alien’s voluntary departure
    Moorani argues that the IJ erred because                period during the pendency of a motion to re-
(1) his motion to reopen on May 8 effectively               open.” Banda-Ortiz disposes of Moorani’s
tolled the voluntary departure period pending               first argument. Because tolling was unavail-
decision by the BIA, and (2) the BIA’s grant                able, Moorani became ineligible for any further
of his motion and remand to the IJ vacated the              relief from removal after his voluntary
underlying voluntary departure order, erasing               departure period expired on May 8. A fortiori,
the requirement that Moorani leave the coun-                we need not consider whether the BIA’s de-
try by a certain date or be subject to civil pen-           cision to grant his motion vacated the underly-
alties.7 The Attorney General argues that both              ing departure order and allowed Moorani to
                                                            pursue his motion on the merits before the IJ.
                                                            Under Banda-Ortiz, the grant of the motion
   6
                                                            itself was untimely, and the agency lacked any
     (...continued)                                         further jurisdiction over Moorani’s case.
initially by an [IJ] or the [BIA] is only within the
jurisdiction of the district director, the Deputy Ex-
                                                               The petition for review is DENIED.
ecutive 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, ex-
ceed . . . 60 days.”).
   7
      The IJ’s opinion does not specify whether
Moorani is ineligible for relief because one or both
of these arguments are in error. It states, however,
that “the respondent is not eligible for any form of
relief 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
                                                               7
power to grant Moorani’s motion on October 8                    (...continued)
once his request for nunc pro tunc extension was            denied.

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