Monica Napoles v. Eric Holder, Jr.

395 F. App'x 338

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 7, 2010
• Docket: 09-72838
• Status: Unpublished

Opinion

MEMORANDUM ***

Petitioner Monica Ñapóles (“Ñapóles”) petitions for review of a final removal order issued on August 5, 2009, by the United States Department of Homeland Security (“DHS”). The sole issue is whether DHS properly reinstated an order of removal against Ñapóles, 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, Ñapóles filed a request for extension, which was denied on June 14, 1996. Ñapóles 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 Ñapóles 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 the time petitioner has to depart voluntarily, we are not adding more time to that clock.”).

Although given nine months to depart, Ñapóles 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. § 1281(a)(5). 1

PETITION DENIED.

*** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1 . Because of our conclusion, we need not reach Ñapóles' alternative argument that she would not be subject to reinstatement if she is deemed to have voluntarily departed.