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

                                                                            FILED
                                                                        December 31, 2008
                                     No. 07-60956
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk




KANWALJIT SINGH,

                                                  Petitioner,

v.

MICHAEL B. MUKASEY, U.S. Attorney General,

                                                  Respondent.




                          Petition for Review of an Order of
                          the Board of Immigration Appeals
                                  No. A78 358 503




Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Through counsel, Kanwaljit Singh petitions for review of the decision of
the Board of Immigration Appeals (“BIA”) affirming the denial of his motion to


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-60956

reopen the April 14, 2005, administrative order granting him voluntary depar-
ture within 120 days and the BIA’s dismissal of his motions to remand for lack
of jurisdiction. He argues that the BIA and immigration judge (“IJ”) arbitrarily
determined that the order became final on the date of the decision. He contends
that because the record does not show that he waived the right to appeal that de-
cision, the decision did not become final until May 14, 2005, after the expiration
of the thirty-day appeal period. He reasons that his motion to reopen was timely
filed within ninety days of that date, on August 12, 2005.
      Singh has not shown that the BIA or IJ abused discretion in denying the
motion to reopen as untimely. Under 8 C.F.R. § 1240.26(b)(1)(i)(D), for Singh to
be eligible for voluntary departure, he was required, inter alia, to waive his right
to appeal. The administrative order includes a notation indicating that he
waived his right to appeal the administrative order. Therefore, that order be-
came final on the date it was issued, April 14, 2005. See 8 C.F.R. § 1003.39 (stat-
ing that a decision is final on waiver of appeal or expiration of thirty-day appeal
period). The motion to reopen was not filed until August 12, 2005, after the ex-
piration of the ninety-day time period on July 13, 2005. 8 C.F.R. § 1003.2(c)(2)
(providing that motion to reopen must be filed within ninety days of final admin-
istrative decision). Singh also has not shown that the BIA or IJ abused discre-
tion in refusing to reopen the proceeding sua sponte based on exceptional circum-
stances under 8 C.F.R. § 1003.2(a). Therefore, there was no abuse of discretion
in denying the motion as untimely. See Panjwani v. Gonzales, 401 F.3d 626, 632
(5th Cir. 2005).
      Singh has not established that the BIA abused its discretion in determin-
ing, in the alternative, that his motion to reopen should be denied because he
was no longer eligible for adjustment of status. Singh did not voluntarily depart
within the 120-day period as order by the IJ. Further, there is no statutory au-
thority for the “automatic tolling of the voluntary departure period during the
pendency of the motion to reopen.” Dada v. Mukasey, 128 S. Ct. 2307, 2319

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                                  No. 07-60956

(2008). Therefore, because Singh did not voluntarily depart within 120 days as
ordered by the IJ, and his motion to reopen did not toll the voluntary departure
period, he is barred from obtaining adjustment of status for a period of ten years
under 8 U.S.C. § 1229c(d)(1).
      Singh argues that the BIA abused its discretion in denying his motions to
remand. Because the initial motion to reopen was not granted, the BIA had no
jurisdiction to consider the motions to remand, which were in substance motions
to reopen and which were filed after the expiration of the ninety-day period in
8 C.F.R. § 1003.2(c). See Wang v. Ashcroft, 260 F.3d 448, 451 (5th Cir. 2001).
Further, the BIA did not err in finding that the motions to remand were unrelat-
ed to Singh’s initial motion to reopen, which alleged there was an unspecified er-
ror concerning his eligibility for adjustment of status; the motions to remand
sought to reopen the proceedings for adjustment of status as either a battered
spouse or a widower of a United States citizen. Therefore, Singh has not shown
that the BIA abused its discretion in dismissing his motions to remand for lack
of jurisdiction. See Panjwani v. Gonzales, 401 F.3d 626, 632 (5th Cir. 2005).
      PETITION DENIED.




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