Nizar Mohamed Basbous v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 06-3493
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NIZAR MOHAMED BASBOUS,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
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On Review of a Decision of the
Board of Immigration Appeals
(Agency No. A79-733-414)
Immigration Judge: Honorable Donald V. Ferlise
Submitted Under Third Circuit LAR 34.1(a)
October 23, 2007
Before: SLOVITER, CHAGARES and HARDIMAN, Circuit Judges.
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(Filed: April 15, 2008)
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OPINION OF THE COURT
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CHAGARES, Circuit Judge.
Nizar Mohamed Basbous petitions for review of a final order of removal issued by
the Board of Immigration Appeals (BIA). In that order, the BIA declined to reconsider its
earlier denial of Basbous’s “request for reinstatement of his 30 day period of voluntary
departure.” While the BIA misinterpreted Basbous’s request as seeking an extension
rather than a toll of his voluntary departure period, Basbous’s voluntary departure period
had nonetheless elapsed prior to the filing of his motion to reconsider. Accordingly, the
BIA properly denied the motion, and we will deny Basbous’s petition for review.
I.
As we write mainly for the parties, we only briefly recite the facts. On August 5,
2004, an Immigration Judge (IJ) rejected Basbous’s claims for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT), but granted
Basbous until September 7, 2004 to depart the country voluntarily. Basbous then filed a
timely appeal to the BIA, which affirmed the IJ’s order on December 7, 2005, but
permitted Basbous an additional 30 days to depart voluntarily. On January 6, 2006, the
last day of his voluntary departure period, Basbous filed a timely motion to reopen. The
motion sought asylum, withholding of removal, and protection under the CAT. In the
alternative, the motion asked that the BIA “reinstate its 30-day grant of voluntary
departure in accordance with Kanivets v. Gonzales, 424 F.3d 330 (3d Cir. 2005) . . . .”
Appendix (App.) 38. The BIA subsequently denied the motion, finding in particular

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“that such reinstatement would not be in accordance with 8 C.F.R. § 1240.26(f)
(providing the circumstances in which the Board or an immigration judge may extend or
reinstate period of voluntary departure).” App. 38. Basbous next filed a motion to
reconsider with the BIA on March 31, 2006, requesting only reconsideration of the BIA’s
decision to deny his “request for reinstatement of his 30 day period of voluntary
departure.” App. 12. On June 22, 2006, the BIA denied the motion, finding that unlike
Kanivets, Basbous “sought more than mere tolling of his 30-day period of voluntary
departure . . . [but instead sought] to begin a new 30-day voluntary departure period.”
App. 3. Basbous seeks review of this decision.
II.
We review denials of motions to reopen and to reconsider under an abuse of
discretion standard. See Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005) (citing
Shardar v. Ashcroft, 382 F.3d 318, 324 (3d Cir. 2004)). Accordingly, we will disturb the
BIA’s denial of such motions only if the denial is arbitrary, irrational, or contrary to law.
Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). Moreover, as Basbous did not seek
judicial review of the denial of his motion to reopen within the 30 day period provided by
8 U.S.C. § 1252(b)(1), only the June 22, 2006 denial of Basbous’s motion to reconsider is
before us.
In his motion to reconsider, Basbous sought permission to leave the country during
what he claimed was his one remaining day for voluntary departure. Basbous correctly
asserts that one day remained on his voluntary departure period when he filed his motion

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to reopen. He also correctly asserts that pursuant to Kanivets, a voluntary departure
period is tolled while the BIA deliberates on that motion. However, even under
Basbous’s theory of the case—with his voluntary departure period tolled during the
pendency of his motion to reopen—that period began to run again when the BIA denied
his motion to reopen on March 2, 2006. As such, even with the benefit of tolling,
Basbous’s voluntary departure period ended the following day, March 3, 2006. Basbous
failed to depart the country before that time, and so, the one day Basbous claims remained
was indeed “a day long past.” Resp’t Br. at 12. Accordingly, the BIA did not abuse its
discretion in denying the motion to reconsider, and we will deny the petition for review.

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