Dekoladenu v. Gonzales

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHRISTOPHER MENSAH DEKOLADENU, 
Petitioner,
v.
 No. 04-2164
ALBERTO R. GONZALES, Attorney
General,
Respondent.

CHRISTOPHER MENSAH DEKOLADENU, 
Petitioner,
v.
 No. 05-1737
ALBERTO R. GONZALES, Attorney
General,
Respondent.

On Petition for Review of an Order of
the Board of Immigration Appeals.
(A78-354-375)
Argued: March 16, 2006
Decided: August 18, 2006
Before MOTZ, KING, and GREGORY, Circuit Judges.
Petition for review denied by published opinion. Judge Motz wrote
the opinion, in which Judge King concurred. Judge Gregory wrote a
separate opinion concurring in the judgment.
2 DEKOLADENU v. GONZALES
COUNSEL
ARGUED: Randall Lee Johnson, JOHNSON & ASSOCIATES,
Arlington, Virginia, for Petitioner. Carol Federighi, Senior Litigation
Counsel, UNITED STATES DEPARTMENT OF JUSTICE, Office
of Immigration Litigation, Washington, D.C., for Respondent. ON
BRIEF: Peter D. Keisler, Assistant Attorney General, M. Jocelyn
Lopez Wright, Assistant Director, UNITED STATES DEPART-
MENT OF JUSTICE, Office of Immigration Litigation, Washington,
D.C., for Respondent.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
An Immigration Judge (IJ) denied Christopher Mensah Dekola-
denu’s motion to reopen removal proceedings and also denied his
subsequent motion to reconsider that decision. The Board of Immigra-
tion Appeals (BIA) affirmed, finding that Dekoladenu was ineligible
for relief because he had overstayed his voluntary departure date.
Dekoladenu petitions for review, arguing that his timely filed motion
to reopen should have tolled the voluntary departure period. For the
reasons set forth below, we deny Dekoladenu’s petition for review.
I.
Dekoladenu is a citizen of Ghana who entered the United States on
a six-month non-immigrant visa in 1998. He applied for asylum and
withholding of removal in June 2000. Two months later, the Immigra-
tion and Naturalization Service ordered Dekoladenu to appear at
removal proceedings. Dekoladenu conceded removability but indi-
cated that he intended to file applications for "political asylum, with-
holding of removal, adjustment of status . . . , and alternatively,
voluntary departure."
On September 6, 2002, Dekoladenu’s employer successfully
applied for an Alien Employment Certification; this certification is a
prerequisite for an employer seeking a work visa on an alien’s behalf.
DEKOLADENU v. GONZALES 3
See 8 U.S.C. § 1153(b)(3)(C) (2000). Dekoladenu’s employer then
filed an I-140 "Immigrant Petition for Alien Worker" on his behalf on
December 26, 2002. On the same day, Dekoladenu filed an I-485
"Application to Register Permanent Residence or Adjust Status."
Dekoladenu then brought motions asking the IJ to either adjourn and
continue or terminate the removal proceedings in light of his pending
applications. On March 6, 2003, the IJ found Dekoladenu removable,
implicitly denying both motions; the IJ granted Dekoladenu a volun-
tary departure date of July 7, 2003.
On July 7, 2003 — the last day of his voluntary departure period
— Dekoladenu filed a motion to reopen proceedings seeking adjust-
ment of status in light of his pending I-140 and I-485 petitions. The
IJ denied the motion to reopen. Dekoladenu then filed a motion to
reconsider the denial of the motion to reopen. The IJ denied this
motion as well. The BIA affirmed the decision of the IJ denying
Dekoladenu’s motion to reopen.1
Before us, Dekoladenu argues that the BIA (1) abused its discretion
in refusing to stay his voluntary departure date while considering his
motion to reopen, and (2) violated his due process rights by denying
him a decision on his motion to reopen. We review the BIA’s deci-
sions on these questions of law de novo. See Nwolise v. INS, 4 F.3d
306, 309 (4th Cir. 1993).
II.
Dekoladenu first argues that the BIA abused its discretion when it
rejected his argument that his motion to reopen tolled the voluntary
departure period.2 The BIA denied Dekoladenu’s appeal on the
1
While Dekoladenu’s petition for review was pending, the Government
moved to remand this case to the BIA to determine whether Dekoladenu
had received proper notice about the consequences of failing to depart
voluntarily, as required by 8 U.S.C. § 1229c(d) (2000). We granted the
Government’s motion to remand. On June 9, 2005, the BIA held that
Dekoladenu received proper notice and reaffirmed the denial of reconsid-
eration. Dekoladenu again petitioned for review of the BIA’s reaffir-
mance on the same grounds that he raised in his earlier petition.
2
Dekoladenu also argues that the IJ’s denial of his motion to reopen
was an abuse of discretion. He maintains that the IJ should have granted
4 DEKOLADENU v. GONZALES
ground that Dekoladenu became ineligible for adjustment of status
when he remained in the United States after the expiration of his vol-
untary departure period.
Dekoladenu asserts that the BIA’s interpretation of the relevant
statutes constitutes an abuse of discretion. Prior to analyzing the
BIA’s construction, however, we must first determine "whether Con-
gress has directly spoken to the precise question at issue." Soliman v.
Gonzales, 419 F.3d 276, 281 (4th Cir. 2005) (quoting Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-
43 (1984)). "If Congress’s intention is clear, the inquiry ends there."
Id. Only if a statute is silent or ambiguous do we need to determine
whether the BIA’s interpretation is reasonable in light of the statute.
See Chevron, 467 U.S. at 843. Accordingly, we turn to the statutes at
issue here.
Removal proceedings are governed by 8 U.S.C. § 1229a (2000).
This statute gives aliens the right to file one motion to reopen in order
to present new facts or evidence. Section 1229a provides that "the
motion to reopen shall be filed within 90 days of the date of entry of
a final administrative order of removal." Id. § 1229a(c)(6)(C)(i).
However, the regulations implementing this statute provide that
"[a]ny departure from the United States . . . occurring after the filing
of a motion to reopen or a motion to reconsider, shall constitute a
withdrawal of such motion." 8 C.F.R. § 1003.2(d) (2006).
Another statutory provision, 8 U.S.C. § 1229c, governs voluntary
departure and allows an IJ to grant an alien the right to depart volun-
tarily "in lieu of being subject to proceedings under section 1229a."
his motion to reopen based on the concurrent filing rule, which allows
aliens to request adjustment of status as long as a visa is "immediately
available." See 8 C.F.R. § 245.2(a)(2)(i)(A) (2006). However, this ques-
tion is not before us, as Dekoladenu did not appeal the IJ’s denial of his
motion to reopen. Rather, this case arises from the BIA’s rejection of
Dekoladenu’s motion to reconsider the IJ’s denial of his motion to
reopen. The BIA affirmed the denial of the motion to reconsider solely
on the ground that Dekoladenu overstayed his voluntary departure date,
and our review is thus limited to that issue.
DEKOLADENU v. GONZALES 5
Id. § 1229c(a)(1). This statute states that, if an eligible alien requests
voluntary departure prior to the completion of removal proceedings,
as Dekoladenu did here, "permission to depart voluntarily . . . shall
not be valid for a period exceeding 120 days."3 Id. § 1229c(a)(2)(A).
An alien who fails to depart "within the time period specified" must
pay a fine between $1,000 and $5,000 and will be ineligible for sev-
eral forms of relief, including adjustment of status. See id. § 1229c(d).
This case highlights the difficulty sections 1229a and 1229c create
for aliens granted voluntary departure. "An alien may timely file a
[motion to reopen], but if the BIA does not decide the [motion] within
the period for voluntary departure, the alien loses the right to have a
ruling [on his motion to reopen]," whether he complies with the vol-
untary departure period or not. Kanivets v. Gonzales, 424 F.3d 330,
334 (3d Cir. 2005). As a practical matter, the BIA will rarely reach
a decision on a motion to reopen before the end of the voluntary
departure period. Thus, most aliens who are granted voluntary depar-
ture have no meaningful ability to file a motion to reopen when they
are seeking one of the forms of relief listed in § 1229c(d).
For this reason, Dekoladenu asserts that we should interpret these
two provisions so that a timely filed motion to reopen tolls the rele-
vant voluntary departure period. We cannot agree. As discussed
below, both the plain language of the statute and clear congressional
intent explicitly limit the time allowed for voluntary departure and do
not allow for judicial tolling of these limits.
In support of his tolling argument, Dekoladenu cites cases from
other circuits that have adopted his interpretation of the statutory
scheme. In Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. 2005), the
Ninth Circuit held that "in cases in which a motion to reopen is filed
within the voluntary departure period . . . the voluntary departure
3
The voluntary departure period for aliens who request voluntary
departure at the conclusion of removal proceedings "shall not be valid for
a period exceeding 60 days." 8 U.S.C. § 1229c(b)(2) (2000). Because the
IJ gave Dekoladenu a 120-day voluntary departure period, we focus our
analysis on section 1229c(a)(2)(A). We believe, however, that the two
types of voluntary departure implicate the same principles.
6 DEKOLADENU v. GONZALES
period is tolled during the period the BIA is considering the motion."4
Id. at 1289. The Third, Eighth, and Eleventh Circuits have followed
the Ninth Circuit’s approach. See Ugokwe v. U.S. Att’y Gen., ___ F.3d
___, 2006 WL 1752339 at *5 (11th Cir. June 28, 2006); Kanivets, 424
F.3d at 334-35; Sidikhouya v. Gonzales, 407 F.3d 950, 951-52 (8th
Cir. 2005). But see Banda-Ortiz v. Gonzales, 445 F.3d 387, 391 (5th
Cir. 2006) petition for rehearing en banc denied, ___ F.3d ___, 2006
WL 2061132 (5th Cir. July 26, 2006) (holding by a divided panel that
a motion to reopen does not toll the voluntary departure period).
Before the Azarte court turned to interpreting the statute at issue
here, it provided a helpful overview of the history of voluntary depar-
ture and motions to reopen. See 394 F.3d at 1282-85. In 1996, Con-
gress passed the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA). See Pub. L. No. 104-208, 110 Stat.
3009-546. Prior to IIRIRA, federal law provided for voluntary depar-
ture but imposed no specific time limits on the voluntary departure
period. See 8 U.S.C. § 1254(e) (1994) (repealed 1996). Rather, indi-
vidual IJ’s exercised discretion in setting voluntary departure dead-
lines; "[i]n practice, voluntary departure was granted for generous
periods of time." Azarte, 394 F.3d at 1284. As for motions to reopen,
before IIRIRA’s enactment, aliens had no statutory right to file a
motion to reopen, but federal regulations allowed aliens to bring
motions to reopen in order to present new information relevant to
their status; these regulations also did not include a time limit. See id.
at 1283.
Under the pre-IIRIRA statutory and regulatory scheme, both this
court and the Ninth Circuit held that if an alien remained in the
United States after the date set for voluntary departure, he could only
obtain relief if exceptional circumstances existed. See Stewart v. INS,
4
In Azarte, the petitioners also requested a stay of removal when they
brought their motion to reopen; therefore, the Ninth Circuit did "not
reach the question whether filing a motion to reopen automatically tolls
the voluntary departure period." Azarte, 394 F.3d at 1288 n.20. However,
in a later case, the Ninth Circuit held that requesting a stay was unneces-
sary because "the timely filing of a motion to reopen or reconsider auto-
matically tolls the voluntary departure period." Barroso v. Gonzales, 429
F.3d 1195, 1205 (9th Cir. 2005).
DEKOLADENU v. GONZALES 7
181 F.3d 587, 596 (4th Cir. 1999); Shaar v. INS, 141 F.3d 953, 956
(9th Cir. 1998). A pending motion to reopen did not qualify as an
exceptional circumstance, and therefore filing a motion to reopen did
not toll the voluntary departure period. See Stewart, 181 F.3d at 596;
Shaar, 141 F.3d at 957. The Azarte court overruled Shaar, its earlier
precedent, finding that "the rationales that underlay Shaar are no lon-
ger applicable after IIRIRA." Azarte, 394 F.3d at 1286. It concluded
that the changes in the law effected by IIRIRA operated to toll the
voluntary departure period when an alien files a motion to reopen. See
id. at 1289.
The Ninth Circuit relied in particular on IIRIRA’s express authori-
zation of immigrants to file motions to reopen, a right previously
available only pursuant to regulation. The Azarte court reasoned that
failure to toll the voluntary departure period would "deprive[ ] the
motion to reopen provision of meaning by eliminating the availability
of such motions to those granted voluntary departure." Id. at 1288.
The court found that tolling the voluntary departure period during the
pendency of a timely-filed motion to reopen would be "more consis-
tent with the statute as a whole" because such an approach "effectu-
ate[s] both statutory provisions." Id. Azarte also held that tolling the
voluntary departure period would avoid an "absurd result," i.e., the
"nonsensical [notion] that Congress would have allowed aliens sub-
ject to voluntary departure to file motions to reopen but would have
simultaneously precluded the BIA from issuing decisions on those
motions." Id. at 1288-89. For these reasons, the court held that inter-
preting IIRIRA to toll the voluntary departure period while an alien’s
motion to reopen is being considered is "most consistent with
IIRIRA’s legislative scheme." Id. at 1289.
Although this approach holds some appeal, in our view the statu-
tory scheme simply does not permit such an interpretation. First,
interpreting the statute as Azarte did ignores the well-established
canon of statutory construction that "a specific statutory provision
controls a more general one." Warren v. N.C. Dept. of Human
Resources, 65 F.3d 385, 390 (4th Cir. 1995); see also Shawnee Tribe
v. United States, 405 F.3d 1121, 1129 (10th Cir. 2005) ("It is a funda-
mental canon of statutory construction that, when there is an apparent
conflict between a specific provision and a more general one, the
more specific one governs." (internal quotation marks omitted)). The
8 DEKOLADENU v. GONZALES
voluntary departure provision applies to certain removable aliens, i.e.,
those "not deportable under section 1227(a)(2)(A)(iii) or section
1227(a)(4)(B)," while the motion to reopen provision applies to all
aliens subject to removal.5 Compare 8 U.S.C. § 1229c(a)(1) (2000)
with id. § 1229a(c)(6)(A).
Following the normal rule of statutory construction, the more spe-
cific voluntary departure provision governs in those limited situations
in which it applies, and the apparent conflict the Azarte court found
between the two statutes disappears. Thus, contrary to Azarte’s sug-
gestion, "eliminating the availability" of a motion to reopen to aliens
granted voluntary departure does not "deprive[ ] the motion to reopen
provision of meaning." Azarte, 394 F.3d at 1288. Rather, this interpre-
tation gives effect to both provisions. A motion to reopen remains
available to all aliens, but an alien who requests voluntary departure
will forfeit his right to a decision on his motion to reopen if the IJ
grants his request.
Although this result may be harsh, it is hardly "nonsensical" or "ab-
surd," as the Azarte court suggested. 394 F.3d at 1288-89. Voluntary
departure is not a right, but a benefit. This benefit, unlike removal,
permits aliens to "avoid[ ] the stigma of compulsory removal, permits
the alien to select his or her own destination, and facilitates the possi-
bility of return to the United States." Rife v. Ashcroft, 374 F.3d 606,
614 (8th Cir. 2004); see also Ngarurih v. Ashcroft, 371 F.3d 182, 194
(4th Cir. 2004) (finding that the statutory provisions governing volun-
tary departure "reveal[ ] Congress’ intention to offer an alien a spe-
cific benefit — exemption from the ordinary bars on subsequent relief
— in return for a quick departure at no cost to the government").
5
The statute does not guarantee voluntary departure even to eligible
aliens. Rather, it provides that the Attorney General "may permit" eligi-
ble aliens to depart voluntarily, see 8 U.S.C. § 1229c(a)(1) (2000), and
authorizes the Attorney General to issue regulations "limit[ing] eligibility
for voluntary departure . . . for any class or classes of aliens." Id.
§ 1229c(e). As a practical matter, only a relatively small percentage of
removable aliens are granted voluntary departure. See, e.g., Executive
Office for Immigration Review, FY 2005 Statistical Yearbook Q1 (indi-
cating that 11 percent of removable aliens were granted voluntary depar-
ture in 2005).
DEKOLADENU v. GONZALES 9
Because voluntary departure is a privilege that is only available to a
subset of removable aliens, it is neither "absurd" nor "nonsensical" to
require aliens who wish to reap the benefits of voluntary departure to
give up their right to a resolution of a motion to reopen.
As the Ninth Circuit itself noted in another case, "[t]he implied
agreement underlying a voluntary departure order serves both parties.
The government affords the alien a more convenient means of leaving
the country, and, in exchange, the alien assures the government that
he will not further press his right to remain in the country." Medina-
Morales v. Ashcroft, 371 F.3d 520, 530 (9th Cir. 2004). Thus, volun-
tary departure allows some aliens to make a deal with the govern-
ment: they must give up certain rights in exchange for the benefits
that flow from voluntary departure.
On the other hand, to adopt the Azarte approach and mandate toll-
ing of the voluntary departure period when an alien files a motion to
reopen would have the effect of rendering the time limits for volun-
tary departure meaningless. If filing a motion to reopen automatically
tolled the voluntary departure period, aliens who have been granted
voluntary departure would have a strong incentive to file a motion to
reopen in order to delay their departure. See INS v. Doherty, 502 U.S.
314, 323 (1992) ("[E]very delay works to the advantage of the deport-
able alien who wishes merely to remain in the United States."). As the
Ninth Circuit acknowledged, when Congress enacted IIRIRA it "dras-
tically limited the time allowed for voluntary departure." Azarte, 394
F.3d at 1285. The statute clearly states that the voluntary departure
period shall not exceed 120 days, see 8 U.S.C. § 1229c(a)(2)(A)
(2000), and a judicially created tolling provision contradicts the plain
language of the statute and undermines the clear congressional intent.6
6
The dissent in the Fifth Circuit’s recent decision in Banda-Ortiz main-
tains that a strict reading of the statutory time limit on voluntary depar-
ture "proves too much" because the BIA regularly tolls the voluntary
departure period during an alien’s appeal to the BIA. 445 F.3d at 395
(Smith, J., dissenting). The dissent contends that "[i]f the voluntary
departure period cannot exceed sixty days under any circumstance, an
alien would risk more than a motion to reopen when he elects voluntary
departure; he would also put in jeopardy his right to any review of the
IJ’s decision." Id. But our interpretation of IIRIRA does not call into
10 DEKOLADENU v. GONZALES
Accordingly, we cannot read IIRIRA as requiring tolling of the
voluntary departure period when an alien files a motion to reopen.
Rather, we believe that the statutory provisions governing motions to
reopen and voluntary departure clearly indicate that filing a motion to
reopen does not toll the voluntary departure period.7 Accordingly, the
BIA did not err when it rejected Dekoladenu’s motion to reconsider
on the ground that he had overstayed his voluntary departure date.
We note that even if we were to find that the statute was silent or
ambiguous with respect to the effect of a motion to reopen on the vol-
untary departure period, we would have to defer to the BIA’s interpre-
tation of the statutes it administers. See INS v. Aguirre-Aguirre, 526
U.S. 415, 424 (1999) (citing Chevron, 467 U.S. at 842). If Congress
had not spoken directly to the issue before us, the question would
become whether the BIA’s decision "is based on a permissible con-
struction of the statute." Id. (quoting Chevron, 467 U.S. at 843) (inter-
nal quotation marks omitted). In our view the statute simply does not
permit Dekoladenu’s preferred interpretation: even if the tension
between the two provisions at issue here revealed an ambiguity (and
we do not believe it does), the BIA’s construction of the statute is, for
question the BIA’s practice of tolling the voluntary departure period dur-
ing the pendency of an appeal. The statutory scheme treats appeals and
motions to reopen very differently. An order of removal does not become
final until the BIA has decided the appeal or the time period for appeal-
ing has expired. See 8 U.S.C. § 1101(a)(47)(B) (2000); see also In re A-
M, 23 I & N Dec. 737, 743-44 (BIA 2005); 5 Charles Gordon, Stanley
Mailman, & Stephen Yale-Loehr, Immigration Law and Procedure
§ 64.03[4][b] (rev. ed. 2005). An alien is not bound by the voluntary
departure period until the order of removal is final. See 8 U.S.C.
§ 1229c(b)(1); In re A-M, 23 I & N Dec. at 743. By contrast, motions to
reopen do not disturb the finality of an order of removal. Thus, the BIA’s
practice of staying the execution of a removal order during a timely
appeal finds justification in the statutory scheme, but no such statutory
justification exists for motions to reopen.
7
For this reason the Azarte court’s reliance on "the well-established
canon of construction that deportation statutes should be construed in
favor of the alien" is misplaced. Azarte, 394 F.3d at 1289. This canon
only comes into play when there are "ambiguities" in the statute. Kwai
Fun Wong v. United States, 373 F.3d 952, 962 (9th Cir. 2004).
DEKOLADENU v. GONZALES 11
the reasons outlined above, clearly reasonable and therefore merits
deference. Cf. Nwolise, 4 F.3d at 309 ("[W]here the BIA’s interpreta-
tion of the statutory section is neither inconsistent [n]or unjustified,
we [will] uphold the Board’s construction which, in its estimation,
will better serve the legislative intent and purpose." (internal quota-
tion marks omitted) (second alteration in original)).8
III.
Dekoladenu also contends that the BIA’s interpretation of sections
1229a and 1229c violates the Due Process Clause of the Fifth Amend-
ment. According to Dekoladenu, the BIA’s approach is arbitrary
because an alien granted voluntary departure will only obtain a reso-
lution of a timely filed motion to reopen if the IJ "happens to act"
before the expiration of the voluntary departure period. Brief of
Appellant at 7-8. We reject this argument because Dekoladenu has
failed to state a due process claim.
In order to make out a due process claim, a claimant must "first
establish that he had a property or liberty interest at stake." Smith v.
Ashcroft, 295 F.3d 425, 429 (4th Cir. 2002). Dekoladenu brought his
motion to reopen seeking adjustment of status. Motions to reopen and
requests for adjustment of status are purely discretionary forms of
relief. See 8 U.S.C. § 1255 (2000); 8 C.F.R. § 1003.2(a) (2006). No
property or liberty interest can exist when the relief sought is discre-
tionary. See Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464-67
(1981); see also Nativi-Gomez v. Ashcroft, 344 F.3d 805, 808 (8th
Cir. 2003) (holding that "[n]o person has a constitutionally protected
8
Contrary to the concurrence’s suggestion, our opinion in this case
does not decide the effect of a motion to reopen when an alien who has
been granted voluntary departure seeks a form of relief not listed in 8
U.S.C. § 1229c(d). Because Dekoladenu sought adjustment of status —
which is listed in § 1229c(d) — we need not reach this question. That
said, in our view Congress’s intent to limit the voluntary departure period
likely applies equally regardless of the type of relief sought in a motion
to reopen. Indeed, the argument that a motion to reopen tolls the volun-
tary departure period is even less persuasive in cases in which the alien
retains the ability to seek relief after the expiration of the voluntary
departure period.
12 DEKOLADENU v. GONZALES
liberty interest" in the discretionary privilege of adjustment of status);
Smith, 295 F.3d at 430 ("On many occasions this circuit has held that
discretionary statutory ‘rights’ do not create liberty or property inter-
ests protected by the Due Process Clause."). Accordingly, because
Dekoladenu has neither a liberty nor a property interest in adjustment
of status, he cannot make out a due process violation.
IV.
For the foregoing reasons, the petition for review is
DENIED.
GREGORY, Circuit Judge, concurring in the judgment:
Although I agree with the majority’s resolution of Dekoladenu’s
due process claim and its decision to deny the petition for review, I
would resolve the case on narrower grounds. As the majority cor-
rectly notes, the question before us is whether the BIA abused its dis-
cretion when it affirmed the denial of Dekoladenu’s motion to
reconsider solely because Dekoladenu had overstayed his departure
date. See Op. at 3-4 n.2. Because the INA bars aliens who overstay
their periods of voluntary departure from receiving adjustment of sta-
tus, I would uphold the BIA’s decision.
Under the INA, a voluntary departure recipient becomes ineligible
for five forms of relief, including adjustment of status, when he over-
stays his voluntary departure period:
If an alien is permitted to depart voluntarily under this sec-
tion and fails voluntarily to depart the United States within
the time period specified, the alien shall be subject to a civil
penalty of not less than $ 1,000 and not more than $ 5,000,
and be ineligible for a period of 10 years for [voluntary
departure, cancellation of removal, adjustment of status,
change of nonimmigrant classification, and record of lawful
admission].
8 U.S.C. § 1229c(d) (2000). Voluntary departure is only granted if an
alien requests it and is notified of the consequences of remaining in
DEKOLADENU v. GONZALES 13
the country beyond his departure period. See 8 C.F.R.
§ 1240.26(b)(1)(i) (An IJ may grant voluntary departure only if the
alien "[m]akes such request"); 8 U.S.C. § 1229c(d) ("The order per-
mitting the alien to depart voluntarily shall inform the alien of the
penalties under this subsection."). Thus, by express agreement, a vol-
untary departure recipient accepts the risk that any subsequent motion
to reopen seeking voluntary departure, cancellation of removal,
adjustment of status, change of nonimmigrant classification, or record
of lawful admission will be denied by operation of the voluntary
departure date.
In spite of the express consequences of his agreement, Dekoladenu
contends that the BIA abused its discretion in affirming the IJ’s denial
of his motion to reconsider. Specifically, Dekoladenu argues that the
BIA’s conclusion that a motion to reopen does not toll the running of
a voluntary departure period deprives aliens of their right to file a
motion to reopen pursuant to 8 U.S.C. § 1229a(c)(6). See 8 U.S.C.
§ 1229a(c)(6) (2000) ("An alien may file one motion to reopen pro-
ceedings under this section."). On these facts, however, Dekoladenu’s
argument is without merit. Even if Dekoladenu did not relinquish his
right to file a motion to reopen when he accepted voluntary departure,
he did give up his ability to obtain adjustment of status in the event
he overstayed his voluntary departure period. Because Dekoladenu’s
motion to reopen was premised solely on a form of relief for which
he was ineligible, the IJ’s denial of that motion, and his subsequent
motion to reconsider, was proper.* Accordingly, the BIA did not
abuse its discretion in affirming the IJ. I therefore concur in the judg-
ment.
*In this regard, I agree with the majority’s denial of the petition, but
not with its pronouncement of a general rule against tolling. Although
Dekoladenu became ineligible for adjustment of status when he stayed
beyond his departure period, his failure to depart did not render him inel-
igible for other forms of relief, such as asylum or withholding of
removal. Because Dekoladenu moved to reopen solely to request adjust-
ment of status, we need not reach the question of whether tolling is an
appropriate means of effectuating an alien’s right to file a motion to
reopen premised on a ground other than those specifically listed in 8
U.S.C. § 1229c(d).