IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 17, 2008
No. 07-60982
Summary Calendar Charles R. Fulbruge III
Clerk
JAIME ROJO-RESENDIZ
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A74 664 018
Before GARWOOD, JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jamie Rojo-Resendiz petitions for review of the final order of the Board of
Immigration Appeals (BIA) denying his motion to reopen immigration
proceedings. The BIA denied the motion to reopen on the ground that Rojo-
Resendiz had overstayed his 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should not be published and is not precedent except under the limited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. 07-60982
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).
Rojo-Resendiz at no time sought to withdraw his request for voluntary
departure and he states in his reply brief in this court that “Because Mr. Rojo
only wishes to voluntary depart now, he is only challenging the issue of
automatic tolling of the voluntary departure period.”
Rojo-Resendiz argues that his timely filed motion to reopen tolled the
voluntary departure period. Rojo-Resendiz’s argument is without merit. See
Dada v. Mukasey, 128 S. Ct. 2307, 2318-19 (2008); Banda-Ortiz, 445 F.3d at 391.
In this matter, Rojo-Resendiz became ineligible to adjust his status because he
failed to depart the United States within the 60-day voluntary departure period,
which expired while his motion to reopen was pending. See § 1229c(d)(B).
Accordingly, the BIA did not abuse its discretion in denying his motion to
reopen. See Banda-Ortiz, 445 F.3d at 391; § 1229c(d)(B).
Rojo-Resendiz argues that the BIA erred in not ruling on his motion to
stay or extend his voluntary departure period, which he filed contemporaneously
with his motion to reopen. The applicable statutory and regulatory provisions,
however, make clear that the BIA was without authority to extend the voluntary
departure period beyond the 60 days already granted. See Dada at 2316; §
1229c(b); 8 C.F.R. § 1240.26(f). Accordingly, the BIA’s implicit denial of the
motion to stay or extend the voluntary departure period was not error.
PETITION FOR REVIEW DENIED.
2