Monica Napoles v. Eric Holder, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 07 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MONICA NAPOLES, No. 09-72838
Petitioner, Agency No. A070-818-532
v.
MEMORANDUM*
ERIC H. HOLDER JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 1, 2010**
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and WHELAN, Senior
District Judge.***
Petitioner Monica Napoles (“Napoles”) petitions for review of a final removal
order issued on August 5, 2009, by the United States Department of Homeland
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Thomas J. Whelan, Senior United States District Judge
for the Southern District of California, sitting by designation.
Security (“DHS”). The sole issue is whether DHS properly reinstated an order of
removal against Napoles, who had been granted voluntary departure but failed to
depart the United States on or before June 5, 1996, as required.
One day prior to the expiration of her voluntary departure period, Napoles filed
a request for extension, which was denied on June 14, 1996. Napoles basically argues
that this court should hold that the filing of her extension request tolled the voluntary
departure period, and that she should be given a reasonable amount of time after the
denial of the extension (she suggests 30 days) to comply with that order. She argues
that therefore she departed voluntarily and not under an order of deportation, and there
is no deportation order to reinstate.
However, even assuming without deciding that Napoles is correct that the
voluntary departure clock should be tolled while her request for extension was
pending, tolling does not otherwise extend the amount of time granted for voluntary
departure. See Barroso v. Gonzales, 429 F.3d 1195, 1206 (9th Cir. 2005) (addressing
tolling during pendency of motion to reopen). In other words, tolling will stop the
clock, but it does not add days to the clock; the number of days remaining on the
departure clock remain the same after the tolling period ends. See Desta v. Ashcroft,
365 F.3d 741, 747 (9th Cir. 2004) (“While we are stopping the clock from running on
2
the time petitioner has to depart voluntarily, we are not adding more time to that
clock.”).
Although given nine months to depart, Napoles waited until there was only one
day remaining in the voluntary departure period to file her request for an extension.
Thus, she had only one day following the denial on June 14 to voluntarily depart the
United States. As such, by at least June 15 the voluntary departure order converted
to an order of removal, which was properly subject to reinstatement under 8 U.S.C.
§ 1231(a)(5).1
PETITION DENIED.
1
Because of our conclusion, we need not reach Napoles’ alternative argument
that she would not be subject to reinstatement if she is deemed to have voluntarily
departed.
3