Ortiz v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 31, 2007
Charles R. Fulbruge III
Clerk
No. 06-60643
Summary Calendar
JUSTINO ORTIZ,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A75 379 818
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Justino Ortiz, a native and citizen of Mexico, petitions for
review of the June 13, 2006, order of the Board of Immigration
Appeals (BIA) denying his motion for reconsideration of an order
issued by the BIA on April 5, 2006. The earlier order affirmed
the immigration judge’s determination that Ortiz was not eligible
for cancellation of removal, and it granted Ortiz a 60-day
voluntary departure period, which expired during the pendency of
the motion for reconsideration.
*
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that this opinion should not be published and is not precedent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. 06-60643
-2-
Ortiz argues that the voluntary departure period was
automatically tolled upon the filing of his motion to reconsider.
He requests that his case be remanded to the BIA, that the
voluntary departure period be reinstated, and that he be allowed
to depart under an order of voluntary departure.
Ortiz’s argument that his motion for reconsideration
automatically tolled his voluntary-departure period is without
merit. See Banda-Ortiz v. Gonzales, 445 F.3d 387, 389-91 (5th
Cir. 2006), cert. denied, 127 S. Ct. 1874 (2007). Ortiz
acknowledges the decision in Banda-Ortiz, but he argues that it
was incorrect as matter of law, seeking to preserve the issue for
further review. However, a panel of this court may not overrule
precedent set by another panel, absent an intervening en banc
decision of this court or a Supreme Court decision. See Burge v.
Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999).
Ortiz’s brief contains no argument directed to the BIA’s
denial of his motion for reconsideration of the BIA’s prior
decision affirming the immigration judge’s determination that
Ortiz was ineligible for cancellation of removal. That issue is
therefore waived. See Rodriguez v. INS, 9 F.3d 408, 414 n.15
(5th Cir. 1993).
Accordingly, Ortiz’s petition for review is DENIED. The
respondent’s motion for summary affirmance, or alternatively, to
extend the time to file a brief, is DENIED as moot.