Mаria Isabel Gonzalez De Martinez petitions for review of the Board of Immigration Appeals (“BIA”)’s decision denying her motion to reopen immigration removal proceedings to apply for an adjustment of status on the basis of her marriage to a United States citizen and the pending visa application filed by her husband. Mrs. De Martinez argues that she was not provided adequate notice of the penalties for failure to depart voluntarily, that two immigration statutes impermissibly conflict, and that she was deprived of due process because aliens whо are not eligible for voluntary departure irrationally receive more favorable treatment.
We deny Mrs. De Martinez’s petition for review of the BIA’s decision because we conclude that her contentions lack merit.
I
Mrs. De Martinez is a citizen of Mexico. She entered the United States without inspection in 1987, but was unable to prove her continuous presence prior to 1990. Mrs. De Martinez filed an asylum application on June 2, 1997. She was served with a notice to appear on July 21, 1997. She admitted that she entered illegally and she conceded removability. Mrs. De Martinez was granted time to file an application for cancellation of removal. The immigration judge (“IJ”) denied her application for cancellation of removal because Mrs. De Martinez had not established ten years of physical presencе in the United States.
She appealed the denial of her application to the BIA. The BIA affirmed the IJ’s decision on June 6, 2002, and granted her *761 voluntary departure within thirty days. The BIA’s written order explained the penalties for failure to depart from the United States within thirty days. Mrs. De Martinez did not seek direct review of the BIA’s decision upholding the IJ’s removal order or, the denial of her application for cancellation of removal. Nor did she seek a stay of the voluntary departure period granted by the BIA.
Mrs. De Martinez filed a motion to reopen for adjustment of status on August 5, 2002, based on a decision of the BIA in an unrelated case. See In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002) (holding that a motion to reopen may be granted to provide an alien with the opportunity to pursue an application for an adjustment of status when a five-part test is satisfied). Mrs. De Martinez alleged in her motion to reopen that she is married to a United States citizen. Her husband filed an application on December 11, 1997, requesting immigrant status on her behalf pursuant to 8 U.S.C. § 1154(a) and 8 U.S.C. § 1151(b)(2)(A)(i).
In her motion to reopen, Mrs. De Martinez argued that In re Velarde-Pacheco held that such an unapproved visa application provides sufficient grounds to reopen remоval proceedings. The BIA denied the motion to reopen because she failed to leave the United States within thirty days of the effective date of its order granting voluntary departure. Mrs. De Martinez filed a timely petition for review.
II
We have subject matter jurisdiction to hear а petition for review of a decision of the BIA denying a motion to reopen.
See Zazueta-Carrillo v. Ashcroft,
We review the denial of a motion to reopen for abuse of discretion.
Shaar v. INS,
Mrs. De Martinez contends that the BIA abused its discretion in denying her motion to reopen because she did not receive actual notice of the penalties for failing to depart. She concedes that the BIA’s order was mаiled to her attorney.
The immigration laws applicable in this matter were revised and reorganized in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRI-RA”). - Prior to the enactment of 'IIRIRA, the penalties for failure to depart did not apply to an alien absent written notice in English аnd Spanish, and oral notice to the alien in a language he or she understood.
See
8 U.S.C. § 1252b(e)(2)(B) (repealed 1996).
1
At oral argument, Mrs. De Martinez improperly relied upon our decision
*762
in
Ordonez v. INS,
In IIRIRA, Congress provided that”[t]he order permitting the alien to depart voluntarily shall inform the alien of the penalties” for failure to depart. 8 U.S.C. § 1229c(d). 2 There is no longеr an explicit statutory remedy if the order fails to “inform the alien of the penalties.” Compare 8 U.S.C. § 1229c(d) (2003) (requiring notice by order without conditioning penalties on notice) with 8 U.S.C. § 1252b(e)(2)(B) (repealed 1996) (applying penalties only if statutory oral and written notice is provided). We need not address whethеr such an alleged defect in the order would permit relief after a failure to depart, as did pre-IIRIRA law, because in this case the order clearly states:
NOTICE: If the respondent fails to depart the United States within the time period specified, or any extensions granted by the district director, the respondent shall be subject to a civil penalty of not less than $1,000 and not more than $5,000, and shall be ineligible for a period of 10 years for any further relief under section 240B and sections 240A, 245, 248, and 249 of the Immigration and Nationality Act. See section 240B(d) of the Act.
The plain language of 8 U.S.C. § 1229e(d) requires only that the order inform the alien of the penalties for failure to depart voluntarily. Service of an order to the alien’s attorney of record constitutes notice to the alien.
See Arreaza-Cruz v. INS,
Ill
Mrs. De Martinez further argues that the statutory penalty for failure to depart prohibiting certain relief conflicts with the statutory requirement to file a motion to reopen within ninety days of а final order of removal. She proposes that “non-frivolous” motions to reopen filed within ninety days, “presenting exceptional circumstances,” should operate to “forgive the failure to depart.” Opening Brief on Petition for Review at 12.
*763 At the conclusion of removal proceedings, an alien may be granted permission to leave the United States within a specified time period. Congress has mandated that “[permission to depart voluntarily under this subsection shall not be valid for a period exceeding 60 days.” 8 U.S.C. § 1229c(b)(2). An alien who fails to depart voluntarily within the specified time period is subject to a civil penalty of $1,000 to $5,000, and is ineligible for a period of ten years for relief under §§ 1229c, 1229b, 1255,1258, and 1259. 8 U.S.C. § 1229c(d). The Department of Homeland Security (“DHS”) has implemented voluntary departures in 8 C.F.R. § 1240.26, 3 allowing an initial grant of up to sixty days, followed by extensiоns by certain DHS officials for a total of not more than sixty days, as permitted by statute.
Congress has also established that”[a]n alien may file one motion to reopen proceedings” that “shall state the new facts that will be proven at a hearing to be held if the motion is granted, аnd shall be supported by affidavits or other evidentiary material.” 8 U.S.C. § 1229a(c)(6)(A), (B). “[T]he motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(6)(C)(i).
This case is on all fours with
Zazueta-Carrillo.
In that case, petitioner Zazueta-Carrillo was denied relief by the BIA and was granted thirty days in whiсh to depart voluntarily. Seventy-four days after the entry of the BIA’s order, Zazueta-Carrillo moved to reopen proceedings in the BIA to allow for adjustment of status because his wife had just become a naturalized citizen. The BIA denied Zazueta-Carrillo’s motion to reopen оn the ground that he had made his motion after failing to depart voluntarily within the thirty-day period.
In this case, as in Zazueta-Carrillo, petitioner Mrs. De Martinez was denied relief by the BIA and granted thirty days in which to depart voluntarily. Mrs. De Martinez’s thirty-day voluntary departure period began to run on June 6, 2002. She moved to reopen her proceedings in the BIA on August 5, 2002, thirty days after the expiration of her voluntary departure period. Her situation is thus exactly comparable to Zazueta-Carrillo’s, excepting оnly that he was forty-four days too late and she was only thirty days too late.
In re Velarde-Pacheco, the case that prompted Mrs. De Martinez’s motion, was decided on March 6, 2002. On August 5, 2002, five months after In re Velarde-Pacheco was decided, sixty days after the BIA’s final order, and thirty days after she was required to depart voluntarily, Mrs. De Martinez filed the motiоn to reopen the proceedings to apply for an adjustment of status. The BIA denied the motion on *764 October 25, 2002. In its decision, it assumed that the facts alleged in her motion would support an adjustment of status, but it determined, correctly, that Mrs. De Martinez was ineligible for relief due to her fаilure to depart the United States within the period allotted for her voluntary departure. Under our holding in Zazueta-Carrillo, the BIA did not err in denying her motion to reopen.
IV
Mrs. De Martinez also maintains that aliens permitted to depart voluntarily are treated less favorably than aliens who are not eligible for voluntary departure, and that the classification and treatment are irrational. She asserts that”[t]hose aliens [not eligible for voluntary departure] can file a[m]otion to [r]eopen up to day 90 following a final order by the BIA. On the contrary, a party who meets all of the criteria for [voluntary [departure is treаted worse than [t]he above alien.” Opening Brief on Petition for Review at 14.
A legislative classification must be “ ‘wholly irrational”’ to violate equal protection.
Hernandez-Mezquita v. Ashcroft,
Aliens have “no fundamental right to be in the United States” and Congress has “exceedingly broad power over the admission and expulsion of aliens.”
Shaar,
Mrs. De Martinez has not demonstrated that aliens forcibly removed аre better situated than aliens permitted to depart voluntarily. There is no indication in the record that aliens subject to a final order of removal typically remain in the United States for at least ninety days. Assuming that such aliens remain in the United States for at least ninety days, Mrs. De Martinez hаs not shown such treatment to be irrational. One notable legitimate purpose that Mrs. De Martinez has failed to negate is that it is less costly and more humane to allow responsible aliens to depart voluntarily without the stigma of being forcibly removed from the United States. It is rational to conclude that the benefit to Mrs. De Martinez and other aliens similarly situated far outweighs any possible detriment from departing more quickly than aliens forcibly removed from the United States.
The petition for review is DENIED.
Notes
. Section 1252b(e)(2)(B) (repealed 1996) provided as follows:
Subparagraph (A) shall not apply to аn alien allowed to depart voluntarily unless, before such departure, the Attorney General has provided written notice to the alien in English and Spanish and oral notice either in the alien's native language or in another language the alien understands of the consequenсes under subparagraph (A) of the alien's remaining in the United States after the scheduled date of departure, other than because of exceptional circumstances.
. Section 1229c(d) provides as follows:
If an alien is permitted to depart voluntarily under this section and fails voluntarily to depart the United States within the time period specified, the alien shall be subject to a civil penalty of not less than $1,000 and not more than $5,000, and be ineligible for a period of 10 years for any further relief under this section and sections 1229b, 1255, 1258, and 1259 of this title. The order permitting the alien to depart voluntarily shall inform the alien of the penalties under this subsection.
. Section 1240.26 provides in pertinent part:
(e).... If voluntary departure is granted at the conclusion of proceedings, the immigration judge may grant a period not to exceed 60 days.
(f).... Authority to extend the time within which to depart voluntarily specified initially by an immigration judge or the Bоard is only within the jurisdiction of the district director, the Deputy Executive Associate Commissioner for Detention and Removal, or the Director of the Office of Juvenile Affairs.... In no event can the total period of time, including any extension, exceed ... 60 days as set forth in section 240B of the Act.