Moorani v. Gonzales

In the
United States Court of Appeals
for the Fifth Circuit
_______________
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,
Circuit Judges.
PER CURIAM:*
Jamal Moorani petitions for review of the
decision of the Board of Immigration Appeals
(“BIA”) finding him statutorily ineligible for
adjustment of status. We affirm based on Ban-
da-Ortiz v. Gonzales, 445 F.3d 387 (5th Cir.
2006).
Moorani is a native and citizen of Pakistan
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-
quested asylum and withholding of removal
and in the alternative, voluntary departure.
After a hearing on the merits, the immigration
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
May 26, 2006
Charles R. Fulbruge III
Clerk

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judge (“IJ”) denied asylum but on August 20,
2000, granted voluntary departure, requiring
Moorani to leave the country within sixty
days1 or forfeit certain forms of discretionary
relief from removal, including adjustment of
status.2
Moorani appealed, which automatically
tolled the running of the voluntary departure
period.3 While his appeal was pending, Miraj
Wholesale (“Miraj”) in Houston offered Moor-
ani full-time employment. Miraj filed an
Immigrant Petition for Alien Worker, which
was approved on February 4, 2002.
The BIA dismissed the appeal on April 8,
2002, and granted Moorani thirty additional
days’ departure time.4 On May 8, the final day
of the departure period, Moorani filed a mo-
tion with the BIA to reopen removal proceed-
ings and remand to the IJ to apply for adjust-
ment of status, based on the approved peti-
tion.5 The Attorney General argued that the
motion should be denied because Moorani had
overstayed the reinstated departure period and
was therefore ineligible for adjustment. On
October 8, the BIA granted the motion. Al-
though noting the Attorney General’s argu-
ment, the BIA stated that “the . . . district
director, under some circumstances, may grant
a nunc pro tunc extension of voluntary depar-
ture, which has the effect of not only extending
an alien’s voluntary departure time but also
restoring voluntary departure to the date on
which it expired.”
On remand, the IJ permitted Moorani to file
for an extension, but on August 19 the district
director denied the request.6 The IJ then1 Permission to depart the United States volun-
tarily at the conclusion of removal proceedings
“shall not be valid for a period exceeding 60 days.”
8 U.S.C. § 1229c(b)(2).
2 The voluntary departure statute provides civil
penalties, including “ineligib[ility] for a period of
10 years for any further relief” from removal un-
der, inter alia, 8 U.S.C. § 1229b, which governs
adjustment of status, for aliens who fail to leave the
United States within the time specified. 8 U.S.C.
§ 1229c(d).
3 See Matter of Villegas Aguirre, 13 I.&N.
Dec. 139, 140 (BIA 1969) (holding that a timely
appeal “tolls the running of the voluntary departure
authorization.”); Matter of Chouliaris, 16 I.&N.
Dec. 168, 170 (BIA 1977) (affirming Aguirre to
the extent that a “grant of voluntary departure
made by an immigration judge shall not be
jeopardized by taking an appeal”).
4 See Chouliaris, 16 I.&N. Dec. at 170 (mod-
ifying Aguirre to hold that where the IJ initially
granted more than 30 days’ departure time and that
(continued...)
4(...continued)
period has expired, “the respondent will be given
30 days from the date of our decision in which to
depart voluntarily”).
5 An alien ordinarily “may file one motion to
reopen [removal] proceedings[.]” 8 U.S.C.
§ 1229a(c)(7)(A). “The motion to reopen shall
state the new facts that will be proven at a hearing
to be held if the motion is granted, and shall be
supported by affidavits or other evidentiary ma-
terial.” Id. § 1229a(c)(7)(B). “[T]he motion to re-
open shall be filed within 90 days of the date of
entry of a final administrative order of removal.”
Id. § 1229a(c)(7)(C)(i).
6 Because the district director ultimately denied
Moorani’s request, we need not decide whether he
would in fact have the authority to issue the
extension contemplated by the BIA. Compare 8
C.F.R. § 1240.26(f) (“Authority to extend the time
within which to depart voluntarily specified
(continued...)

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

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