Opinion
No. 06-60641 Summary Calendar.
May 31, 2007.
J. Jesus Rios, Houston, TX, for Petitioner.
Thomas Ward Hussey, Director, Linda Susan Wendtland, U.S. Department of Justice, Office of Immigration Litigation, Ann Carroll Varnon, U.S. Department of Justice, Civil Division Immigration Litigation, Washington, DC, Trey Lund, U.S. Immigration and Customs Enforcement, Field Office Director, Carl Perry, New Orleans, LA, Sharon A. Hudson, U.S. Citizenship Immigration Services, Houston, TX, for Respondent.
Alberto R. Gonzales, U.S. Department of Justice, Washington, DC, pro se.
Petition for Review of an Order of the Board of Immigration Appeals, BIA No. A78 996 317.
Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.
Ana Elizabeth Cabrera-Benavidez, a native and citizen of Guatemala, petitions for review of the June 9, 2006, order of the Board of Immigration Appeals (BIA) denying her motions to reconsider and reopen an order issued by the BIA on March 28, 2006. The earlier order affirmed the immigration judge's determination that Cabrera was not eligible for cancellation of removal, and it granted Cabrera a 60-day voluntary departure period, which expired during the pendency of the motion for reconsideration.
Cabrera argues that the voluntary departure period was automatically tolled upon the filing of her motion to reconsider. She requests that her case be remanded to the BIA, that the voluntary departure period be reinstated, and that she be allowed to depart under an order of voluntary departure.
This court has rejected the argument that the voluntary departure period is automatically tolled during the pendency of a motion to reopen. See Banda-Ortiz v. Gonzales, 445 F.3d 387, 389-91 (5th Cir. 2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1874, 167 L.Ed.2d 363 (2007). Cabrera acknowledges the decision in Banda-Ortiz, but she 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). Cabrera's argument fails under Banda-Ortiz. See 445 F.3d at 389-91.
Cabrera additionally argues that the BIA abused its discretion by not ruling on her request to toll the voluntary departure period. However, the applicable statutory and regulatory provisions, as well as Banda-Ortiz, make clear that the BIA was without authority to extend the voluntary departure period beyond the 60 days already granted. See 8 U.S.C. § 1229c(b); 8 C.F.R. § 1240.26(f). Accordingly, the BIA's implicit denial of the request to toll the voluntary departure period was not an abuse of its discretion.
Accordingly, Cabrera's petition for review is DENIED.