Gonzalez-Hernandez v. Mukasey

280 F. App'x 355

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 30, 2008
• Docket: 07-60451
• Status: Unpublished

Opinion

PER CURIAM: *

Humberto Gonzalez-Hernandez is a native and citizen of Mexico who was admitted into the United States in July 2000 and remained in the country beyond the authorized period. An immigration judge ordered him removed but granted his request for voluntary departure. The Board of Immigration Appeals (“BIA”) dismissed the appeal of the order and renewed the voluntary departure order to allow Gonzalez-Hernandez to depart within 60 days from the date of the BIA’s order, June 26, 2006.

On September 22, 2006, Gonzalez-Hernandez filed a motion to reopen and remand for adjustment of status based on his marriage to a lawful permanent resident. On December 14, 2006, 2006 WL 3922217, the BIA denied the motion. Gonzalez-Hernandez did not file a petition for review but filed a motion to reconsider the order. He argued that the order deprived him of due process, because enforcement of a 60-day departure order where an alien has 90 days to file a motion to reopen following entry of the order would deprive him of a procedural right under the Immigration and Nationality Act (“INA”).

Citing Banda-Ortiz v. Gonzales, 445 F.3d 387 (5th Cir.2006), cert. denied, — U.S.-, 127 S.Ct. 1874, 167 L.Ed.2d 363 (2007), the BIA denied the motion to reconsider, concluding that Gonzalez-Hernandez was statutorily barred from applying for adjustment of status by § 240B(d)(l) of the INA, 8 U.S.C. § 1229c(d), because he had failed to depart voluntarily within 60 days of its June 26, 2006, order. Gonzalez-Hernandez petitions for review of the order denying reconsideration, which is reviewed “under a highly deferential abuse-of-discretion standard.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir.2006) (internal quotations and footnote omitted).

The BIA’s interpretation of the applicable statutes rendering Gonzalez-Hernandez ineligible for adjustment of status is reasonable. See Banda-Ortiz, 445 F.3d at 389-91. Because Gonzalez-Hernandez was ineligible for adjustment of status, the BIA did not abuse its discretion by denying the motion to reconsider on that basis. See Singh, 436 F.3d at 487; Zhao v. Gonzales, 404 F.3d 295, 303-04 (5th Cir.2005). Accordingly, the petition for review is DENIED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.