                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 05-2315



CYRIL ODOGWU,

                                                            Petitioner,

           versus


ALBERTO R. GONZALES, U.S. Attorney General,

                                                            Respondent.


On Petition for Review of an Order of the Board of Immigration
Appeals. (A75-996-737)


Argued:   November 28, 2006                 Decided:   February 6, 2007


Before WILKINS, Chief Judge, WIDENER, Circuit Judge, and David A.
FABER, Chief United States District Judge for the Southern District
of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Anser Ahmad, Harrisburg, Pennsylvania, for Petitioner.
James Arthur Hunolt, UNITED STATES DEPARTMENT OF JUSTICE, Office of
Immigration Litigation, Washington, D.C., for Respondent.        ON
BRIEF: Peter D. Keisler, Assistant Attorney General, Civil
Division, M. Jocelyn Lopez Wright, Assistant Director, UNITED
STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Cyril Odogwu, a native and citizen of Nigeria, petitions for

review of a decision by the Board of Immigration Appeals (BIA).

The BIA found Odogwu statutorily ineligible for adjustment of

status and ordered him removed to Nigeria.

      Odogwu’s petition raises the issue of whether granting a

motion to reopen nullifies the consequences of a prior violation of

a voluntary departure order.       We hold that it does not.



                                     I.

      Cyril Odogwu is a 39 year old native of Nigeria.          He came to

the   United   States   as   a   non-immigrant   visitor   in   1998   with

authorization to stay for six months.       Odogwu overstayed his six-

month visa, and in November 1998, the government commenced removal

proceedings against him.1 At his removal hearing, Odogwu requested

that he be granted voluntary departure in lieu of removal.             The

immigration judge (IJ) granted Odogwu’s request, and ordered that

Odogwu voluntarily depart the United States by January 8, 1999.


      1
      In March 2003, service and benefit functions of the
Immigration and Naturalization Service (INS) were reorganized and
transferred from the Department of Justice to the newly created
Department of Homeland Security.    See Homeland Security Act of
2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002). However, the
functions of the Executive Office of Immigration Review, which
includes the immigration courts and the BIA, remained under the
jurisdiction of the Department of Justice.       See Aliens and
Nationality, 68 Fed. Reg. 10,349 (March 5, 2003).       To avoid
confusion, we will refer to either the INS or the present DHS as
simply the “government.”

                                     2
The IJ warned Odogwu that failure to depart by January 8 would

render him ineligible for various forms of relief, including

adjustment of status, for a period of ten years.

      After the IJ entered the voluntary departure order, Odogwu

married a United States citizen, who filed an I-130 immediate

relative   visa    petition    on   his    behalf.     See    8    U.S.C.     §

1151(b)(2)(a)(I). Odogwu requested and was granted an extension of

the voluntary departure order until May 4, 1999.             In April 1999,

two   different    attorneys   requested    further   extensions      of    the

voluntary departure order, but those requests were denied.            Odogwu

did not leave on his departure date, and his voluntary departure

order automatically became a final order of removal.           See 8 C.F.R.

§ 1240.26(d); 8 C.F.R. § 1241.7.

      Odogwu and his spouse divorced in December 2000.            In February

2001, almost two years after his voluntary departure date, Odogwu

filed a motion to reopen his removal proceedings.            See 8 U.S.C. §

1229a(c)(7).2     Motions to reopen must be filed within ninety days

of a final order of removal, unless a petitioner can meet one of

the statutory exceptions to the ninety-day limit.             See id. at §

1229a(c)(7)(C). Odogwu argued that he was eligible for asylum, one



      2
      When Odogwu initiated these proceedings, motions to reopen
were codified at § 1229a(c)(6). Real ID Act of 2005, Pub. L. No.
109-13, 119 Stat. 231, 304 (2005). Congress later redesignated
former paragraphs (4), (5), and (6) as paragraphs (5), (6), and
(7), respectively, and added an additional paragraph (4). See id.
None of these changes affect Odogwu’s case.

                                     3
of the statutory exceptions.3   Odogwu also informed the IJ that he

was engaged to a United States citizen, and that she was expecting

their child.   The IJ granted Odogwu’s motion to reopen based on his

asylum petition,4 and subsequently granted a motion to change venue

to Baltimore, Maryland.

     At the reopened removal hearing in Baltimore, Odogwu, through

counsel, withdrew his asylum application and indicated that he was

seeking only adjustment of status based on his recent marriage.5

Before the IJ could determine the merits of Odogwu’s application

for adjustment of status, the government submitted a motion to

pretermit Odogwu’s proceedings. The government argued that because


     3
      “There is no time limit on the filing of a motion to reopen
if the basis of the motion is [asylum] . . . and is based on
changed country conditions arising in the . . . country to which
removal has been ordered, if such evidence is material and was not
available and would not have been discovered or presented at the
previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C).
     4
      The IJ stated at the hearing on Odogwu’s motion to reopen
that he would consider the expected birth of Odogwu’s child when
adjudicating his adjustment of status application. The IJ also
noted, however, that he did not know whether Odogwu was statutorily
eligible for adjustment of status.
     5
      In June 2001, Stacey Odogwu, petitioner’s second wife, filed
an I-130 immediate relative visa petition on his behalf. Because
Odogwu was subject to removal proceedings when his wife filed the
I-130 visa petition, he and his wife had to prove by clear and
convincing evidence that they married for legitimate purposes. See
8 U.S.C. § 1255(e)(3).        Odogwu and his wife successfully
established the legitimacy of their marriage, and the government
approved the I-130 visa petition.      Odogwu then filed an I-485
Application for Adjustment of Status based on his wife’s approved
I-130 visa petition.    See id. at § 1255(a).     However, the IJ
pretermitted Odogwu’s reopened proceedings and ordered him removed
to Nigeria before his I-485 application could be approved.

                                  4
Odogwu did not depart the United States by his voluntary departure

date, he was statutorily ineligible for adjustment of status for

ten years.   See 8 U.S.C. § 1229c(d).   Odogwu’s counsel did not file

a timely response to the government’s motion, and on January 7,

2003, the IJ pretermitted Odogwu’s application for adjustment of

status and ordered him removed to Nigeria.

     Odogwu appealed the decision to the BIA, which affirmed the

IJ’s order of removal.      The BIA agreed that § 1229c(d) bars

Odogwu’s application for adjustment of status.     Odogwu then filed

this appeal.



                                II.

     This court reviews the BIA’s legal conclusions de novo, giving

appropriate deference to its interpretations of the Immigration and

Nationality Act.    Nwolise v. I.N.S., 4 F.3d 306, 309 (4th Cir.

1993). This court rejects the BIA’s statutory interpretations only

when they are “arbitrary, capricious, or manifestly contrary to the

statute.”    See Chevron U.S.A., Inc. v. Natural Res. Council, 467

U.S. 837, 844 (1984).



                               III.

     Odogwu argues that he did not violate his voluntary departure

order because by reopening his case, the IJ vacated the prior

departure order.    The Seventh Circuit has held that granting a


                                 5
motion to reopen disposes of the voluntary departure order and

vitiates the effects of a violation of that order.     See Orichitch

v. Gonzales, 421 F.3d 595, 598 (7th Cir. 2005); see also Bronisz v.

Ashcroft, 378 F.3d 632, 637 (7th Cir. 2004).    However, the First

Circuit held that while granting a motion to reopen has “the legal

effect of vacating” a departure order, “it could not ‘retroactively

nullify’ . . . [a] previous violation of the terms of that order.”

DaCosta v. Gonzales, 449 F.3d 45, 50 (1st Cir. 2006) (quoting

Bocova v. Gonzales, 412 F.3d 257, 265 (1st Cir. 2005)).         For

reasons discussed below, we adopt the First Circuit’s reasoning and

hold that granting a motion to reopen does not retroactively

nullify the consequences of a prior violation of a voluntary

departure order.



                                A.

     Voluntary departure is a discretionary form of relief that

allows a person to depart the United States voluntarily and avoid

the inadmissibility restrictions that result from an order of

removal. See 8 U.S.C. § 1229c(a)(1). Voluntary departure provides

benefits to both the non-citizen and the government.    See DaCosta,

449 F.3d at 51.    Voluntary departure affords the non-citizen “1)

the ability to choose his own destination point; 2) the opportunity

to put his affairs in order without fear of being taken into

custody; 3) freedom from extended detention while the government


                                 6
prepares for his removal; 4) avoidance of the stigma of forced

removal; and 5) continued eligibility for an adjustment of status.”

Banda-Ortiz v. Gonzales, 445 F.3d 387, 389-90 (5th Cir. 2006).

Because the individual pays for his own departure, the government

saves money and avoids devoting additional time and resources to

further proceedings. See id. at 390. However, the consequences of

violating a voluntary departure order are severe: anyone violating

a voluntary departure order is barred from being granted various

forms of relief, including adjustment of status, for a period of

ten years.      8 U.S.C. § 1229c(d).

     Motions to reopen allow an IJ to consider evidence that has

arisen subsequent to the petitioner’s previous removal hearing.

See 8 U.S.C. § 1229a(c)(7).          Before an IJ can grant a motion to

reopen,   the    petitioner   must    show   that   the   new   evidence   was

previously unavailable and that it could not have been presented at

the former hearing.        See 8 C.F.R. § 1003.2(c)(1).             However,

granting a motion to reopen does not guarantee that the relief

sought will be granted, only that the previously unavailable

evidence will be considered.         See id.

     The United States Supreme Court has said that motions to

reopen are most analogous to Rule 60(b) motions under the Federal

Rules of Civil Procedure.        Stone v. I.N.S., 514 U.S. 386, 401

(1995) (“The closest analogy to the INS’ discretionary petition for

agency reconsideration is the motion for relief from judgment under


                                       7
Rule of Civil Procedure 60(b).”); see also Bronisz, 378 F.3d at

636.     While not addressing motions to reopen in the context of

removal proceedings, this Circuit has held that granting a Rule

60(b) motion reopens the earlier civil proceeding and vacates the

underlying judgment.     See Fobian v. Storage Tech. Corp., 164 F.3d

887, 890 (4th Cir. 1999) (“When a district court grants a 60(b)

motion, it must necessarily vacate the underlying judgment and

reopen the record.”).     However, granting a motion to reopen does

not undo the consequences of a prior violation of that judgment

order.     See DaCosta, 449 F.3d 50-51.          Therefore, even though

granting a motion to reopen has the legal effect of vacating a

prior    voluntary   departure   order,    it   does   not   “retroactively

nullify” the consequences of a prior violation of a then valid

voluntary departure order.       See id.

       Policy considerations also justify this holding.           Voluntary

departure “reveals Congress’[s] intention to offer an alien a

specific benefit - exemption from the ordinary bars on subsequent

relief - in return for a quick departure at no cost to the

government.”    Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir.

2004).    “But if the alien does not depart promptly, so that the

[government] becomes involved in further and more costly procedures

by his attempts to continue his illegal stay here, the original

benefit to the [government] is lost.” Banda-Ortiz, 445 F.3d at 390




                                     8
(quoting Ballenilla-Gonzalez v. I.N.S., 546 F.2d 515, 521 (2d. Cir.

1976)).

     Further, if we held that granting a motion to reopen nullifies

the effects of a prior violation of a voluntary departure order, we

would    put   persons   who   violated   their    departure     orders   at   a

procedural advantage over those who complied with the terms of

their orders.        That is because a person who complies with a

voluntary departure order forfeits the right to file a motion to

reopen.    See 8 C.F.R. § 1003.2(d) (stating that a person must be

present in the United States to file a motion to reopen).                 If we

held that granting a motion to reopen retroactively nullifies a

prior violation of a voluntary departure order, it would create

incentives for persons not to comply with their voluntary departure

orders.    Such an interpretation would be contrary to the statutory

purpose of voluntary departure - to allow a quick departure at no

cost to the government.        See Ngarurih, 371 F.3d at 194.       For these

reasons, the BIA properly found that § 1229c(d) statutorily barred

Odogwu from adjustment of status.



                                     B.

     Odogwu’s remaining arguments are without merit. Odogwu argues

that because the government failed to oppose the IJ’s decision to

reopen    Odogwu’s   removal    proceedings,      the   matter   should    have




                                      9
proceeded    on    the   merits   of    Odogwu’s      adjustment   of    status

application.6

     Odogwu’s argument is unconvincing.             The government’s failure

to oppose the IJ’s order reopening Odogwu’s case does not mean that

it abandoned its right to present legal arguments against Odogwu’s

application for adjustment of status.             See DaCosta, 449 F.3d at 51

(“Although the [government] did not oppose the motion to reopen,

the [government] did not waive its right to present an argument

against [petitioner’s] request for adjustment of status . . . .”).

Regardless of whether the IJ correctly granted the motion to

reopen,     once   Odogwu   abandoned       his    asylum   request,    he   was

statutorily ineligible for the only remaining form of relief sought

- adjustment of status.      See id. at 51.        Further proceedings would

have been futile, and the government was within its right to move

to have Odogwu’s case pretermitted.

     Also, permitting Odogwu to proceed with his adjustment of

status application after withdrawing his asylum claim would have

allowed Odogwu to circumvent the time limits imposed on motions to

reopen. Because Odogwu filed his motion to reopen more than ninety


     6
      Odogwu also argues that the government’s motion to pretermit
is actually an untimely motion to reconsider an IJ’s order. Odogwu
is incorrect. Motions to reconsider can only be filed after entry
of a final administrative order of removal.            8 U.S.C. §
1229a(c)(6)(B).    The order granting a motion to reopen is an
interlocutory order, not a final order of removal. See In re M-S-,
22 I. & N. Dec. 349, 354 (BIA 1998). Therefore, the government
could not have filed a motion to reconsider the IJ’s order granting
Odogwu’s motion to reopen.

                                       10
days after a final order of removal had been entered against him,

he had to satisfy one of the statutory exceptions to the ninety-day

limit.       See   8   U.S.C.       §    1229a(c)(7)(C)(I).        Odogwu      claimed

eligibility for asylum, one of the statutory exceptions, and the IJ

granted the motion to reopen based on this asylum claim.                       See id.

at § 1229a(c)(7)(C)(ii).            However, once the IJ granted his motion

to reopen, Odogwu abandoned his asylum petition and chose to

proceed solely on his application for adjustment of status based

upon   his   marriage    to     a       United   States    citizen.      Had    Odogwu

originally filed his motion to reopen on the basis of his recent

marriage to a United States citizen, it would have been denied as

untimely for failure to meet one of the statutory exceptions to the

ninety-day limit.        See id. at §§ 1229a(c)(7)(C)(i)-(iv).                  If we

allowed Odogwu to proceed with his adjustment of status application

after he withdrew the only basis for having his case reopened more

than ninety days after a final order of removal had been entered

against him, we would create an unintended and unnecessary loophole

to   the   time    limits     Congress       imposed      on   motions   to    reopen.

Therefore, the BIA properly granted the government’s motion to

pretermit.




                                            11
                               IV.

     For the foregoing reasons, we deny the petition for review

and affirm the ruling of the Board of Immigration Appeals.



                                                         AFFIRMED




                               12
