Youssef Sidikhouya, a citizen of Morocco, entered the United States on a visitor visa and did not leave when it expired. In December 2001, Sidikhouya was served with a notice to appear before an immigration judge (IJ) charging him with remova-bility. Sidikhouya admitted the allegations in the notice to appear, conceded removability, and requested a voluntary departure. The IJ denied Sidikhouya’s request for a continuance to allow time for a decision on his pending labor certification application, which would qualify him for relief from removal. The IJ ordered removal and granted voluntary departure. Sidikhouya appealed to the Board of Immigration Appeals (BIA) in October 2002. In August 2003, Sidikhouya married a United States citizen and the next month, his wife filed a Form 1-130 Petition for Alien Relative. In January 2004, the BIA affirmed the IJ’s decision. On February 13, 2004, Sidikhouya sought reopening of his immigration proceedings before the BIA under 8 U.S.C. § 1229a(c)(6)(A), seeking an immediate relative visa petition with eligibility for the bona fide marriage exception, and a stay of voluntary departure. In support of his motion, Sidikhouya submitted documentary evidence to establish the legitimacy of his marriage. Sidikhouya’s voluntary departure period expired the next day, on February 14, 2004. The next month, the BIA denied Sidikhouya’s motion to reopen solely because Sidikhouya had overstayed his period of voluntary departure even though he had been warned an overstay would render him ineligible for relief from removal. Sidikhouya now petitions for review.
Sidikhouya contends the BIA should have granted his motion to reopen based on his bona fide marriage to a United States citizen. We have jurisdiction to review the BIA’s denial of the motion to reopen for abuse of discretion. Guerra-Soto v. Ashcroft, 397 F.3d 637, 640 (8th Cir.2005). Because Sidikhouya was served with a notice to appear in 2001, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) applies to him. Under IIRIRA, an alien may adjust status based on marriage entered during deportation proceedings if the alien shows the marriage was bona fide. 8 U.S.C. § 1255(e)(3); see Patel v. Ashcroft, 375 F.3d 693 (8th Cir.2004). Under 8 U.S.C. § 1229c(d), an alien who is permitted to depart voluntarily and fails to do so within the specified time period is ineligible for ten years for adjustment of status under § 1255, however. An alien has up to sixty days to voluntarily depart, and up to ninety days to file a single motion to reopen at *952the conclusion of removal proceedings. Id. § 1229c(b)(2); id. § 1229a(c)(6)(C)(i).
Sidikhouya argues the BIA wrongfully rejected his motion based on an incorrect interpretation of Matter of Shaar, 141 F.3d 953, 956-57 (9th Cir.1998) (holding pre-IIRIRA version of § 1229c(d), § 1252b(e)(2)(A), prohibits an alien who has remained in the United States after the scheduled departure date from applying for adjustment of status, even if the alien sought reopening before departure date). Shaar has been revisited in Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir.2005). The court in Azarte noted that with the enactment Of IIRIRA, motions to reopen were transformed from a regulatory to a statutory form of relief. Id. at 1283. Under current BIA interpretations, if an alien departs within his voluntary departure period, he forfeits any motion to reopen he may have filed because he is no longer within the United States. Id. at 1281 (citing 8 C.F.R. § 1003.2(d)(2004)). If an alien fails to depart within his voluntary departure period, he also forfeits any pending motion to reopen because he has violated his , voluntary departure period and thus is no longer eligible to receive the underlying relief. Id. at 1282. Because the “BIA rarely if ever rules on a motion to reopen before an alien’s voluntary departure period has expired, the interpretation serves to deprive aliens who are afforded voluntary departure of their statutory right to a determination on the merits of motions to reopen.” Id. Thus, the court in Azarte concluded that under the BIA’s interpretations, the large class of aliens who are granted voluntary departure are functionally deprived of their statutory right to file a motion to reopen. Id.
To give effect to both the voluntary departure and motion to reopen statutes, the Azarte court held that when a motion to reopen is filed within the voluntary departure period, the voluntary departure period is tolled during the time the BIA is considering the motion to reopen. 394 F.3d at 1289. Thus, the BIA abused its discretion in denying the petitioner’s motion to reopen on the ground the petitioner had overstayed his voluntary departure period. Id. at 1280. In so holding, the court refused to apply Shaar because changes in both the statute and practice require a new interpretation. Id. at 1286-87; see Barrios v. Attorney General, 399 F.3d 272, 275 (3d Cir.2005) (adopting same reasoning as Azarte to reject Shaar and grant petition for motion to reopen under pre-IIRIRA statute, § 1252b(e)). We agree with the view in Azarte that Sidik-houya must be afforded an opportunity to receive a ruling on the merits of his timely filed motion to reopen and hold the BIA abused its discretion in denying Sidikhou-ya’s motion to reopen solely on the ground that he had overstayed his voluntary departure period.
Sidikhouya also contends the IJ’s denial of his continuance request violated 8 U.S.C. § 1255(i), citing Subhan v. Ashcroft, 383 F.3d 591 (7th Cir.2004). We lack jurisdiction to review the IJ’s discretionary denial of Sidikhouya’s motion to continue ,his removal proceedings. Onyinkwa v. Ashcroft, 376 F.3d 797, 798 (8th Cir.2004).
We thus remand this matter to the BIA for further proceedings consistent with this opinion.