Voluntary Departure: Effect of a Motion To Reopen or Reconsider or a Petition for Review, 67674-67687 [E7-23289]

Agencies

• Executive Office for Immigration Review
• Department of Justice

[Federal Register Volume 72, Number 230 (Friday, November 30, 2007)]
[Proposed Rules]
[Pages 67674-67687]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-23289]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 72, No. 230 / Friday, November 30, 2007 / 
Proposed Rules

[[Page 67674]]



DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1240 and 1241

[EOIR Docket No. 163P; AG Order No. 2919-2007]
RIN 1125-AA60


Voluntary Departure: Effect of a Motion To Reopen or Reconsider 
or a Petition for Review

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Proposed rule with request for comments.

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SUMMARY: The immigration laws provide that an alien may request and 
receive a grant of voluntary departure in certain cases; such a grant 
allows an alien to depart voluntarily during a specified period of time 
after the order is issued, in lieu of being removed under an order of 
removal. Voluntary departure is an agreed upon exchange of benefits 
between the alien and the government that provides tangible benefits 
for aliens who do depart during the time allowed. There are severe 
statutory penalties, however, for aliens who voluntarily fail to depart 
during the time allowed for voluntary departure. This proposed rule 
would amend the Department of Justice (Department) regulations 
regarding voluntary departure to allow an alien to elect to file a 
motion to reopen or reconsider, but also to provide that the alien's 
filing of a motion to reopen or reconsider prior to the expiration of 
the voluntary departure period will have the effect of automatically 
terminating the grant of voluntary departure. Similarly, the rule also 
provides that the alien's filing of a petition for judicial review 
shall automatically terminate the grant of voluntary departure. In 
other words, the rule would afford the alien the option either to abide 
by the terms of the grant of voluntary departure, in lieu of an order 
of removal, or to forgo the benefits of voluntary departure and instead 
challenge the final order on the merits in a motion to reopen or 
reconsider or a petition for review. If the alien elects to seek 
further review and forgo voluntary departure, the alien will be subject 
to the alternate order of removal that was issued in conjunction with 
the grant of voluntary departure, similar to other aliens who were 
found to be removable. But this approach also means he or she will not 
be subject to the penalties for failure to depart voluntarily.
    The rule also amends the bond provisions for voluntary departure to 
make clear that an alien's failure to post a voluntary departure bond 
as required will not have the effect of exempting the alien from the 
penalties for failure to depart under the grant of voluntary departure. 
Aliens who are required to post a voluntary departure bond remain 
liable for the amount of the voluntary departure bond if they do not 
depart as they had agreed. However, the rule clarifies the 
circumstances in which aliens will be able to get a refund of the bond 
amount upon proof that they are physically outside of the United 
States. In addition, the rule provides that, at the time the 
immigration judge issues a grant of voluntary departure, the 
immigration judge will also set a specific dollar amount of not less 
than $3,000 as a civil money penalty if the alien voluntarily fails to 
depart within the time allowed.

DATES: Written comments must be submitted on or before January 29, 
2008.

ADDRESSES: You may submit comments, identified by EOIR Docket No. 163P, 
by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Kevin Chapman, Acting General Counsel, Executive 
Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls 
Church, Virginia 22041. To ensure proper handling, please reference 
EOIR Docket No. 163P on your correspondence. This mailing address may 
also be used for paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: Kevin Chapman, Acting General 
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, 
Suite 2600, Falls Church, Virginia 22041; telephone (703) 305-0470 (not 
a toll-free call).

FOR FURTHER INFORMATION CONTACT: Kevin Chapman, Acting General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2600, Falls Church, Virginia 22041; telephone (703) 305-0470 (not a 
toll-free call).

SUPPLEMENTARY INFORMATION: 

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
rule. Comments that will provide the most assistance to the Department 
of Justice will reference a specific portion of the rule, explain the 
reason for any recommended change, and include data, information, or 
authority that support such recommended change.
    Instructions: All submissions received must include the agency name 
and EOIR Docket No. 163P. All comments received will be posted without 
change to https://www.regulations.gov/, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov. Submitted comments 
may also be inspected at the Executive Office for Immigration Review, 
5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041. To make 
an appointment, please contact EOIR at (703) 305-0470 (not a toll free 
call).

II. Background

    The Immigration and Nationality Act (INA or Act) provides that, as 
an alternative to formal removal proceedings and entry of a formal 
removal order, ``[t]he Attorney General may permit an alien voluntarily 
to depart the United States at the alien's own expense.'' INA 
240B(a)(1), (b)(1) (8 U.S.C. 1229c(a)(1), (b)(1)).
    Pursuant to the Homeland Security Act of 2002, Pub. L. 107-296, the 
functions previously exercised by the former Immigration and 
Naturalization Service were transferred to the Department of Homeland 
Security (DHS), while the immigration judges and the Board of 
Immigration Appeals (Board) were retained in the Department of Justice 
under the authority of the Attorney General. See 6 U.S.C. 521; 8 U.S.C. 
1103(g). Accordingly, DHS now has the authority to grant voluntary 
departure under section 240B(a) of the Act in lieu of placing the alien 
in

[[Page 67675]]

removal proceedings, while the Attorney General has authority over 
grants of voluntary departure issued by an immigration judge or the 
Board, after removal proceedings have begun. This rule deals only with 
orders granting voluntary departure issued by immigration judges or the 
Board, and does not affect DHS's issuance of orders granting voluntary 
departure for aliens prior to the initiation of removal proceedings. 
See 8 CFR 240.25.
    Prior to 1996, the authority for voluntary departure was found in 
former section 244(e) of the Act, which contained no time limitations 
on the period for which voluntary departure could be valid. However, in 
1996 Congress enacted the Illegal Immigration Reform and Immigrant 
Responsibility Act (IIRIRA), Public Law 104-208, Div. C, which 
significantly amended the Act, including provisions relating to 
voluntary departure. Reforms to voluntary departure included enacting 
restrictions limiting the time for which voluntary departure may be 
authorized, and enacting provisions to increase compliance by aliens 
who request grants of voluntary departure. The statutory changes made 
by IIRIRA to voluntary departure remain in effect.
    Currently, prior to completion of removal proceedings an 
immigration judge may permit an alien to depart the United States 
voluntarily, if certain conditions are met, within a total period not 
to exceed 120 days. INA 240B(a)(2)(A) (8 U.S.C. 1229c(a)(2)(A)); 8 CFR 
1240.26(b). Among these conditions is an agreement by the alien not to 
file an appeal. 8 CFR 1240.26(b)(1)(D).
    At the conclusion of removal proceedings, additional conditions are 
applicable, but the alien is not required to waive the filing of an 
appeal to the Board. The immigration judge may permit an alien to 
depart the United States voluntarily only within a total period of no 
more than 60 days. INA 240B(b)(2) (8 U.S.C. 1229c(b)(2)); 8 CFR 
1240.26(c). Where the period of voluntary departure granted by the 
immigration judge or the Board is less than the statutory maximum, DHS 
also has authority to grant an extension of voluntary departure up to 
the statutory maximum of 120 or 60 days.
    Because the Act provides that the Attorney General ``may'' permit 
an alien to depart voluntarily, the determination whether to allow an 
alien in removal proceedings to depart voluntarily is within the 
discretion of the Attorney General and of the immigration judges and 
the Board, who act on his behalf. The Act further provides that ``[t]he 
Attorney General may by regulation limit eligibility for voluntary 
departure under this section for any class or classes of aliens. No 
court may review any regulation issued under this subsection.'' INA 
240B(e) (8 U.S.C. 1229c(e)).

III. The Nature of Voluntary Departure

    Voluntary departure ``is a privilege granted to an alien in lieu of 
deportation.'' Iouri v. Aschroft, 487 F.3d 76, 85 (2d Cir. 2007), pet. 
for cert. filed, No. 07-259 (Aug. 22, 2007) (citing Ballenilla-Gonzalez 
v. INS, 546 F.2d 515, 521 (2d Cir. 1976)). It is ``an agreed upon 
exchange of benefits between the alien and the Government.'' Banda-
Ortiz v. Gonzales, 445 F.3d 387, 389 (5th Cir. 2006), cert. denied, 127 
S. Ct. 1874 (2007). This quid pro quo offers an alien ``a specific 
benefit--exemption from the ordinary bars to relief--in return for a 
quick departure at no cost to the government.'' Id. at 390 (quoting 
Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir. 2004)). When choosing 
to seek voluntary departure, the alien agrees to take all the benefits 
and burdens of the statute together. Ngarurih, 371 F.3d at 194. In 
order to obtain voluntary departure at the conclusion of removal 
proceedings, an alien must establish to the immigration judge by clear 
and convincing evidence that he or she is both willing and able to 
depart voluntarily. See, e.g., 8 U.S.C. 1229c(b)(1)(D); 8 CFR 
1240.26(c)(1)(iv). Often, this involves the alien testifying under oath 
that he or she intends to depart the United States within the specific 
time period allotted, that he or she has the financial means to depart 
the United States, and that he or she has the necessary documentation--
such as a valid passport--to do so. See 8 CFR 1240.26(c)(3).
    ``If an alien chooses to seek [voluntary departure]--and that 
choice is entirely up to the alien--it can produce a win-win 
situation.'' Naeem v. Gonzales, 469 F.3d 33, 36 (1st Cir. 2006) (citing 
Bocova v. Gonzales, 412 F.3d 257, 265 (1st Cir. 2005)). ``For aliens, 
voluntary departure is desirable because it allows them to choose their 
own destination points, to put their affairs in order without fear of 
being taken into custody at any time, to avoid stigma and various 
penalties associated with forced removal--and it facilitates the 
possibility of return to the United States.'' Iouri, 487 F.3d at 82-83 
(citing Lopez-Chavez v. Ashcroft, 383 F.3d 650, 651 (7th Cir. 2004)). 
``For the government, it expedites departures and reduces the costs 
that are typically associated with deporting individuals from the 
United States.'' Id., at 83 (citing Thapa v. Gonzales, 460 F.3d 323, 
328 (2d Cir. 2006)); accord Chedad v. Gonzales, 497 F.3d 57, 63-64 (1st 
Cir. 2007), pet. for reh'g en banc filed (Oct. 15, 2007); Azarte v. 
Ashcroft, 394 F.3d 1278, 1284 (9th Cir. 2005). ``Where an alien departs 
within the specified time period, the alien is not regarded as having 
been deported and thus obtains the benefits of departure without 
deportation.'' Iouri, 487 F.3d at 85 (citing Gordon, Mailman & Yale-
Loehr, Immigration Law and Procedure 72.08[1][a] (rev. ed. 2005)). In 
particular, the grant of voluntary departure enables an alien to avoid 
the five- or ten-year period of inadmissibility that would result from 
an order of removal. See 8 U.S.C. 1182(a)(9)(A).
    However, ``[t]he benefits normally associated with voluntary 
departure come with corollary responsibilities. An alien who permits 
his voluntary departure period to run and fails to leave the country 
before the expiration date faces severe sanctions; these may include 
forfeiture of the required bond, a fine, and a ten-year interval of 
ineligibility for certain forms of immigration-related relief.'' Naeem, 
469 F.3d at 37. These penalties, as well as the elimination of an 
``exceptional circumstances'' exception previously available to aliens 
for failing to comply with a voluntary departure grant, were added to 
the voluntary departure provisions by Congress in 1996 to ensure that 
aliens who seek voluntary departure no longer abuse the privilege that 
is a grant of voluntary departure. Compare 8 U.S.C. 1229c(d) (2000 & 
supp. ) with 8 U.S.C. 1252b(e)(2)(A) (repealed effective April 1, 
1997).
    Exceptions to or extensions of the voluntary departure period 
authorized by Congress run counter to the statutory purpose. The court 
in Ngarurih recognized this, noting ``an alien could request voluntary 
departure, overstay the specified period and deprive the government of 
a quick departure, wait out the appellate review process, and then 
demand the full benefits of voluntary departure.'' Ngarurih, 371 F.3d 
at 195. Delay in proceedings generally works in the alien's favor. See, 
e.g., INS v. Doherty, 502 U.S. 314, 323 (1992) (noting that ``every 
delay'' in deportation proceedings ``works to the advantage of the 
deportable alien who wishes merely to remain in the United States''); 
Shaar v. INS, 141 F.3d 953, 956 (9th Cir. 1998) (overruled on other 
grounds).
    The Fourth Circuit summed up voluntary departure as follows:

    [V]oluntary departure is, from beginning to end, voluntary. The 
alien must request the relief; it is not offered as a matter of 
course. Even if he requests the relief and obtains it, the alien may 
later reject it by overstaying the

[[Page 67676]]

period specified for departure. If he rejects voluntary departure in 
this manner, then he is subject to removal from the United States in 
the ordinary course. The fact that his choice carries real 
consequences--a monetary penalty and subjection to the ordinary bars 
on subsequent relief--means that the alien has a real choice to 
make, not that he is * * * ``forced'' to leave.

Ngarurih, 371 F.3d at 194 n.12 (citation omitted).

    This rule applies to all orders granting voluntary departure by an 
immigration judge, but the proposed changes relate primarily to orders 
granting voluntary departure to an alien at the conclusion of removal 
proceedings, pursuant to the provisions of section 240B(b) of the Act 
and 8 CFR 1240.26(c). At that stage of the proceedings, voluntary 
departure is not a relevant issue unless the immigration judge or the 
Board has already found that the alien is removable under section 212 
or 237 of the Act (8 U.S.C. 1182, 1227). Moreover, voluntary departure 
is not a relevant issue unless the immigration judge or the Board is 
denying all of the alien's other applications for relief or protection 
of removal (such as asylum, withholding of removal, cancellation of 
removal, adjustment of status, waivers, etc.), as the issue of 
voluntary departure would be moot if the alien were granted any relief 
or protection from removal. Thus, at the request of the alien, and 
based on the alien's statement of his or her ability and intent to 
depart the United States within the period allowed for voluntary 
departure, the immigration judge's grant of voluntary departure permits 
the alien to depart voluntarily, within a fixed period of time, instead 
of subjecting the removable alien to an order of removal. However, a 
grant of voluntary departure issued at the conclusion of proceedings 
also includes an alternate order of removal, which takes effect 
automatically if the alien fails voluntarily to depart during the time 
allowed.
    Under the current regulations, as well as under this proposed rule, 
an alien who is granted voluntary departure at the conclusion of 
proceedings before the immigration judge is still able to file an 
appeal to the Board and present any arguments with respect to the 
merits of the alien's removability and eligibility for any form of 
relief or protection from removal. If neither party appeals the 
immigration judge's decision, then the decision becomes final and the 
period of time for voluntary departure runs from the date of the 
immigration judge's grant of voluntary departure. However, in every 
case where the alien does file a timely appeal to the Board, the 
immigration judge's order is not final, and the time period for 
voluntary departure does not begin to run until after the conclusion of 
the Board's adjudication of the merits of the alien's appeal. If the 
Board reverses the immigration judge's decision on the merits or 
remands the case to the immigration judge for further proceedings, the 
grant of voluntary departure is rendered moot by virtue of the Board's 
decision. In the event of a remand, the issue of the alien's 
eligibility for and desire to receive voluntary departure will again be 
before the immigration judge as part of the remanded proceedings. Thus, 
it is only in those cases where the Board rejects all of the alien's 
arguments relating to removability and to relief or protection from 
removal that the order granting voluntary departure actually takes 
effect and the alien is obligated to depart from the United States 
within the specified period (no more than 60 days).

IV. Voluntary Departure and the Effect of Filing Motions To Reopen or 
Reconsider

    Once the immigration judge or Board issues a final order in a case, 
regardless of whether it grants voluntary departure, the alien has the 
option under the Act and implementing regulations to file a motion to 
reopen or a motion seeking to have the decision reconsidered.

A. Motions To Reopen or Reconsider

    Prior to the statutory codification of the regulatory provisions on 
reopening and reconsideration, the Board held in Matter of Shaar, 21 
I&N Dec. 541 (BIA 1996), aff'd, 141 F.3d 953 (9th Cir.1998), that the 
filing of a motion to reopen does not suspend the running of the period 
for voluntary departure or excuse the alien from the requirement to 
depart within that period.
    In the 1996 legislation, Congress enacted section 240(c)(6) and (7) 
of the Act (8 U.S.C. 1229a(c)(6) and (7)), which substantially codified 
existing regulatory provisions. Paragraph (6) allows an alien in 
removal proceedings to file one motion to reconsider and provides that 
such a motion must be filed within 30 days of the date of entry of a 
final removal order in his or her removal proceedings. Paragraph (7) 
allows an alien to file one motion to reopen removal proceedings and 
provides that such a motion must be filed within 90 days of the date of 
entry of a final administrative order of removal.\1\ The statutory 
provisions do not provide for a stay of removal upon the filing of a 
motion to reopen or a motion to reconsider, except in two quite limited 
circumstances (for motions to reopen seeking to rescind an in absentia 
removal order and certain motions filed by battered spouses, children 
and parents, as provided in subsections (b)(5)(C) and (c)(7)(C)(iv) of 
section 240 of the Act).
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    \1\ After the issuance of a final decision by the Board, only 
motions to reopen and motions to reconsider are authorized under the 
immigration laws. 8 U.S.C. 1229a(c)(6) and (7). A separate kind of 
motion, a motion to remand, can be filed only during the pendency of 
an appeal, but not after the issuance of a final order. 8 CFR 
1003.2(c)(4) states, ``A motion to reopen a decision rendered by an 
Immigration Judge or [DHS] officer that is pending when an appeal is 
filed, or that is filed while an appeal is pending before the Board, 
may be deemed a motion to remand for further proceedings before the 
Immigration Judge or the [DHS] officer from whose decision the 
appeal was taken.'' See also Matter of Coelho, 20 I&N Dec. 464 (BIA 
1992) (discussing motions to remand considered by the Board during 
the pendency of the appeal). After the issuance of a final order, 
the Board sometimes receives motions styled as motions to ``remand'' 
or motions to ``reopen and remand.'' Such motions, however, 
presuppose reopening in order to have the case remanded and, 
accordingly, they are properly considered to be motions to reopen 
and are subject to the same requirements. Id. The Board and the 
immigration judges otherwise would lack authority to entertain such 
motions in the first instance. Matter of C-W-L-, 24 I&N Dec. 346, 
350 (BIA 2007) (``[T]he regulations provide that to request further 
relief, a motion to reopen must be filed with the last body that 
issued an administratively final order of removal,'' and the filing 
of a motion to reopen proceedings is ``a prerequisite to our taking 
up any issue arising in [the respondent's] case, given the entry of 
the removal order against him.''). Accordingly, the provisions of 
this rule apply to all motions to reopen or reconsider that are 
filed after the issuance of a final administrative decision, however 
such motions are styled.
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    After publication of a proposed rule on January 3, 1997, the 
Department of Justice published an interim rule implementing the 
provisions of IIRIRA on March 6, 1997. See 62 FR 10312. The 
supplementary information for the interim rule requested comments on 
what position the final, permanent rules should take on the effect on 
the voluntary departure period of an appeal from an immigration judge 
to the Board, a petition for review of a Board decision in the court of 
appeals, or a motion to reopen or reconsider filed with an immigration 
judge or the Board:

    [S]everal commenters requested clarification regarding the 
effect of a motion or appeal to the Immigration Court, BIA, or a 
federal court on any period of voluntary departure already granted. 
Since an alien granted voluntary departure prior to completion of 
proceedings must concede removeability [sic] and agree to waive 
pursuit of any alternative form of relief, no such appeal or motion 
would be possible in this situation. Regarding post-hearing 
voluntary departure, the Department considered several options, but 
has not adopted any position or modified the interim rule. The 
Department has identified three possible options: no tolling of any 
period of voluntary departure; tolling the voluntary departure 
period for any

[[Page 67677]]

period that an appeal or motion is pending; or setting a brief, 
fixed period of voluntary departure (for example, 10 days) after any 
appeal or motion is resolved. The Department wishes to solicit 
additional public comments on these or other possible approaches to 
this issue so that it can be resolved when a final rule is 
promulgated.

62 FR 10312, 10325-26 (Mar. 6, 1997).

    Although no final rule directly addressing those issues has been 
published, the current regulations are consistent with the Department's 
longstanding view that the filing of a motion to reopen does not 
suspend a period of voluntary departure. The regulations do not state 
that the conclusion reached by the Board in Shaar was incorrect or was 
to be superseded. To the contrary, they provide that the filing of a 
motion to reopen or a motion to reconsider ``shall not stay the 
execution of any decision made in the case,'' and that ``[e]xecution of 
such decision shall proceed unless a stay of execution is specifically 
granted by'' the Board or the immigration judge. 8 CFR 1003.2(f). In 
addition, the regulations expressly permit the reinstatement of 
voluntary departure in the context of reopening, but only in situations 
where the reopening was granted before the expiration of the period 
allowed for voluntary departure:

    An immigration judge or the Board may reinstate voluntary 
departure in a removal proceeding that has been reopened for a 
purpose other than solely making application for voluntary 
departure, if reopening was granted prior to the expiration of the 
original period of voluntary departure. In no event can the total 
period of time, including any extension, exceed 120 days or 60 days 
as set forth in section 240B of the Act and paragraph (a) of this 
section.

8 CFR 1240.26(h) (emphasis added). That rule necessarily rests on the 
assumption that the mere filing of the motion to reopen does not 
suspend or toll the running of the voluntary departure period. Finally, 
although the Board has not published a precedent decision since its 
1996 decision in Shaar addressing the interplay between the provisions 
relating to voluntary departure and motions to reopen or reconsider a 
final order in removal proceedings, the Board has continued to conclude 
that the filing of such a motion does not suspend or toll the voluntary 
departure period, as evidenced by the number of court of appeals 
decisions reviewing such decisions by the Board.\2\
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    \2\ The Department's practice has remained consistent with 
respect to the other two subjects referenced in the 1997 request for 
comments as well. With respect to appeals from an immigration judge 
to the Board, the INA itself provides that an immigration judge's 
order does not become final until the Board issues its decision, see 
8 U.S.C. 1101(a)(47)(B), and the Department's regulations provide 
that the voluntary departure period runs from that date, 8 CFR 
1241.1(f). With respect to petitions for review, in contrast, the 
Department's position continues to be that the filing of such a 
petition does not by its own force create a stay of removal.
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    As a practical matter, it is often the case that an immigration 
judge or the Board cannot reasonably be expected to adjudicate a motion 
to reopen or reconsider during the voluntary departure period, 
particularly since the voluntary departure period under section 240B(b) 
of the Act is limited to no more than 60 days. Many motions to reopen 
are filed by the alien one or two days before the end of the 60-day 
voluntary departure period, thereby making it impossible to resolve the 
matter before the period allowed for voluntary departure expires.
    Because of the relatively short period of time allowed for 
voluntary departure after a final administrative order (no more than 60 
days), and the time needed as a practical matter to adjudicate motions 
to reopen or reconsider, aliens who file a motion to reopen or 
reconsider may face a choice. Some aliens may choose to remain in the 
United States beyond the voluntary departure period in order to await 
the decision of the Board on the motion, thereby incurring the 
statutory penalties because of their failure to depart as they had 
promised to do. For example, if a decision on the motion is not issued 
until after the period allowed for voluntary departure has expired, 
which is frequently the case, then the 10-year bar on obtaining 
adjustment of status may be deemed to apply by operation of 8 U.S.C. 
1229c(d) because of the alien's failure to depart. Other aliens may 
choose to depart the United States in compliance with the grant of 
voluntary departure, even though they have not yet received a decision 
on their motion, in order to avoid the voluntary departure penalties. 
However, under the current regulations the alien's departure from the 
United States has the effect of automatically withdrawing the alien's 
motion. 8 CFR 1003.2(d); see also 8 CFR 1003.23(b)(1) (similar rule for 
departure after filing a post-decision motion with the immigration 
judge).\3\
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    \3\ We note that two courts of appeals have reached contrary 
conclusions with respect to section 1003.2(d). See Li v. Gonzales, 
473 F.3d 979 (9th Cir. 2007) (interpreting section 1003.2(d) only to 
bar the filing of a motion to reopen if the alien ``is'' in removal 
proceedings at the time of his or her departure, but not to bar the 
filing of a motion to reopen if the alien was already the subject of 
a final order of removal at the time of departure); William v. 
Gonzales, 499 F.3d 329 (4th Cir. 2007) (holding that section 
1003.2(d) is inconsistent with the provisions of section 240(c)(7) 
of the INA). The Board at present is following those decisions only 
for cases arising in those two circuits. This proposed rule does not 
address the interpretation or applicability of section 1003.2(d).
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B. Existing Circuit Split

    The courts of appeals are divided on the question of how the filing 
of a motion to reopen impacts a grant of voluntary departure. Four 
circuits have held that the timely filing of a motion to reopen during 
the voluntary departure period automatically ``tolls'' the period 
allowed for voluntary departure. See Kanivets v. Gonzales, 424 F.3d 
330, 331 (3d Cir. 2005); Sidikhouya v. Gonzales, 407 F.3d 950, 952 (8th 
Cir. 2005); Barrios v. United States Att'y General, 399 F.3d 272 (3rd 
Cir. 2005) (pre-IIRIRA); Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th 
Cir. 2005); Ugokwe v. United States Att'y Gen., 453 F.3d 1325, 1331 
(11th Cir. 2006). In a similar context, the Ninth Circuit has held that 
the filing of a timely motion to reconsider tolls the voluntary 
departure period. Barroso v. Gonzales, 429 F.3d 1195 (9th Cir. 2005). 
The courts of appeals for the First, Fourth, and Fifth Circuits have 
reached the contrary conclusion, as a matter of law or by deference to 
the Board's authority to interpret the Act, finding that the filing of 
a motion to reopen does not toll the period allowed for voluntary 
departure. See Chedad, 497 F.3d at 63-64; Banda-Ortiz, 445 F.3d at 390; 
Dekoladenu v. Gonzales, 459 F.3d 500, 507 (4th Cir. 2006), pet. for 
cert. filed (No. 06-1285).
    Under current judicial precedents in some circuits the voluntary 
departure process as it is being applied bears little resemblance to 
the statutory mandate that the alien who requests and is granted 
voluntary departure at the conclusion of removal proceedings is 
expected to depart voluntarily no more than 60 days after the 
administrative order becomes final. In some circuits, as noted above, 
the filing of a motion to reopen or reconsider has the effect of 
automatically tolling the time period for voluntary departure, allowing 
the alien to remain in the United States until the motion is 
adjudicated. The result in these circuits is that some aliens who have 
received a final administrative order, after appealing to the Board, 
are able to remain in the United States to pursue the full panoply of 
means to challenge the final decision through administrative motions to 
reopen or reconsider (including in some cases the filing of a motion to 
reconsider the denial of a motion to reopen). Those processes, of 
course, can take many months to accomplish. Thus, contrary to the 
incentives and benefits of voluntary departure that result if an alien 
actually

[[Page 67678]]

departs within a short, fixed, period of time, the result in those 
areas of the country is that aliens who accept a grant of voluntary 
departure are nevertheless able to remain in the United States for an 
often lengthy period of time and are not obligated to depart 
voluntarily until after they have exhausted all opportunities for 
reconsideration, remand, or reopening. At that point, the government 
will already have borne much the same burdens that it would have faced 
if the alien had not agreed to depart voluntarily, and much of the 
benefit to the government will have been lost. Banda-Ortiz, 445 F.3d at 
390. This result is also contrary to the clear congressional intent to 
limit the period of time allowed under the voluntary departure 
provisions, which before the 1996 amendments had allowed aliens to 
remain in the United States for many months or even years under grants 
of voluntary departure.
    Contrary to the decisions of those courts of appeals, the 
Department's interpretation of the Act and the existing regulations is 
that the filing of a motion to reconsider or reopen under section 
240(c)(6) or (7) of the INA (8 U.S.C. 1229a(c)(6) or (7)) does not 
automatically toll the voluntary departure period, and that such 
tolling is not necessary in order to give effect to both the INA's 
provision for an alien to file a motion to reopen and its provision 
authorizing the Attorney General to permit voluntary departure. As the 
Fourth Circuit has explained, the ``voluntary departure provision'' 
establishing the maximum departure period of 60 or 120 days ``applies 
to certain removable aliens'' who qualify for that relief, ``while the 
motion to reopen provision applies to all aliens subject to removal.'' 
Dekoladenu, 459 F.3d at 505-06. Indeed, only 11 percent of removable 
aliens were granted voluntary departure in 2005. See id. at 506 n.5. 
Accordingly, ``[f]ollowing the normal rule of statutory construction, 
the more specific voluntary departure provision governs in those 
limited situations in which it applies.'' Id. at 506. Motions to reopen 
are unaffected in other cases. Moreover, while the INA provides that an 
alien may file one motion to reopen, it confers no right to substantive 
relief. To the contrary, the granting of reopening is discretionary. 
Similarly, the granting of voluntary departure is discretionary with 
the Attorney General, and the Attorney General is expressly authorized 
to limit eligibility for additional classes of aliens pursuant to 
section 240B(e) of the INA (8 U.S.C. 1229c(e). Finally, although an 
alien who has obtained a grant of voluntary departure and is subject to 
an alternate order of removal may, after exhausting administrative 
remedies with the Board, file a petition for review with the court of 
appeals, it is well-established that the mere filing of such a petition 
does not automatically toll or suspend the voluntary departure period, 
as illustrated by the number of appellate decisions addressing whether 
it is appropriate to construe a motion for a stay of removal as 
necessarily encompassing a request for a stay of voluntary departure. 
It therefore is fully consistent with the Act that, under applicable 
procedures, an alien who files a motion to reopen and chooses to remain 
in the country until the Board acts upon it thereby gives up the 
benefits of voluntary departure.
    That was the conclusion reached by the Board in Shaar under the 
reopening regulations that were codified in the 1996 amendments made by 
IIRIRA, and there is no indication in those amendments or their 
legislative history that they overturned the rule of Shaar. To the 
contrary, a rule of automatic tolling, with resulting delay, of 
voluntary departure would be contrary to Congress's decision in the 
1996 amendments to impose strict time limits on the voluntary departure 
period. Indeed, ``mandat[ing] tolling of the voluntary departure period 
when an alien files a motion to reopen would have the effect of 
rendering the time limits for voluntary departure meaningless.'' 
Dekoladenu, 459 F.3d at 506; see Banda-Ortiz, 445 F.3d at 390 
(``Automatic tolling would effectively extend the validity of [an 
alien's] voluntary departure period well beyond the sixty days that 
Congress has authorized.'').
    The Supreme Court recently granted certiorari to review a decision 
by the Fifth Circuit with respect to the effect of filing a motion to 
reopen, in order to resolve the circuit split under existing law. Dada 
v. Keisler, 128 S. Ct. 6 (Sept. 25, 2007) (No. 06-1181).

C. The Attorney General's Authority To Promulgate a Different 
Regulatory Scheme in the Future

    As a result of the varying judicial interpretations in the 
different regional circuits, there is a substantial geographic 
disparity with respect to how voluntary departure is administered, 
depending solely on the location of the hearing before the immigration 
judge. Experience also has shown that the current regulatory framework 
can lead to significant delays in promoting and effectuating voluntary 
departure after a final administrative order is entered. Though such 
disparities of interpretation among the circuits occur in other 
contexts as well, there are sound public policy reasons for the 
Attorney General to promote a greater measure of uniformity and 
expedition in the administration of the immigration laws. The goals of 
promoting uniformity of interpretation and assuring prompt voluntary 
departure underlie this proposed rule.
    Circuit court decisions holding that the filing of motions to 
reopen or reconsider tolls the running of a voluntary departure period 
do not prevent the Department of Justice from rendering an 
authoritative construction of the Act that does not require tolling, as 
it does now in issuing these rules. ``Only a judicial precedent holding 
that the statute unambiguously forecloses the agency's interpretation, 
and therefore contains no gap for the agency to fill, displaces a 
conflicting agency construction.'' National Cable & Telecom. Ass'n v. 
Brand X Internet Servs., 545 U.S. 967, 982-83 (2005); id. at 983-84 
(``A court's prior judicial construction of a statute trumps an agency 
construction otherwise entitled to Chevron deference only if the prior 
court decision holds that its construction follows from the unambiguous 
terms of the statute and thus leaves no room for agency discretion.''). 
Certainly, nothing in the Act ``unambiguously'' requires that the mere 
filing of a motion to reopen or reconsider automatically tolls the 
voluntary departure period within which the alien has agreed to depart. 
And indeed the Board's practice under the 1996 amendments (as it was 
before those amendments as stated in Shaar) has been not to deem the 
voluntary departure period automatically tolled upon the filing of a 
motion to reopen or reconsider.
    Nor do the various judicial decisions under the current regulatory 
framework preclude the Attorney General from adopting a different 
regulatory scheme for the future within the broad parameters of the 
statutory provisions enacted by Congress. Congress clearly provided for 
the Attorney General to have broad authority to implement the voluntary 
departure provisions of the Act and to limit eligibility for voluntary 
departure for specified classes or categories of aliens, as provided in 
section 240B(e) of the Act. The provisions of this rule are an exercise 
of these statutory authorities. These new rules will be applicable to 
grants of voluntary departure that will be made in the future, after 
these rules are finalized, and will not affect any cases in which a 
grant of voluntary departure was made prior to their adoption.

[[Page 67679]]

    The voluntary departure statute does not unambiguously provide that 
permission to depart voluntarily is irrevocable once granted, such that 
aliens permitted to depart voluntarily by an immigration judge must 
always be viewed as having been ``permitted to depart voluntarily'' for 
purposes of 8 U.S.C. 1229c(d). Accordingly, the Attorney General 
retains discretion and authority to provide, by regulation, that 
permission to depart voluntarily is conditioned upon the alien's 
agreeing to accept the finality of the Board's order after it is issued 
(or the finality of the immigration judge's order if there is no 
appeal), and depart within the period allowed for voluntary departure 
thereafter, without seeking to challenge the final order by filing a 
motion to reopen or reconsider.
    That is what these proposed rules would do, by providing that 
permission to depart voluntarily, following entry of a final order, 
will terminate if the alien files a motion to reopen or reconsider the 
final administrative order. A voluntary departure order reflects an 
agreement or bargain between the government and the alien, in which the 
alien represents that he or she is ready and able to depart voluntarily 
within a short, defined period of time, in exchange for receiving the 
favorable terms of a grant of voluntary departure. If the alien decides 
not to uphold his or her end of the bargain and instead chooses to 
challenge the final order rather than departing within the time 
allowed, these rules provide that the grant of voluntary departure is 
terminated and the alternate order of removal becomes effective. 
Moreover, unlike the current regulatory scheme for grants of voluntary 
departure prior to the conclusion of proceedings before an immigration 
judge, in which the alien is required irrevocably to waive the right to 
appeal as provided in 8 CFR 1240.26(b)(1)(i)(D), these proposed rules 
are more favorable to the alien because they do not irrevocably bar the 
alien from challenging the final order after it is entered by the 
Board. The alien will be free to forgo voluntary departure and instead 
to elect to challenge the final order through a motion to reopen or 
reconsider, or a petition for review. Or, put another way, these rules 
would allow the alien an opportunity to withdraw from the arrangement 
into which he or she effectively entered under the statute and the 
amended regulations at the time of seeking and accepting voluntary 
departure, and instead to pursue further challenges after issuance of 
the final order. And because the alien's act of filing an 
administrative motion to reopen or reconsider or a petition for 
judicial review would have the effect of terminating a period of 
voluntary departure granted in accordance with these regulations, no 
voluntary departure period would remain to be tolled or stayed.
    This approach advances the legitimate interests of the government 
in preserving the purposes of the voluntary departure authority; it 
also enables aliens to avoid the consequences under section 240B(d) of 
the INA of an earlier decision to accept a grant of voluntary 
departure, in the event of a change of circumstances that may lead the 
alien to seek to avoid those consequences, including the alien's 
decision to challenge the validity of a removal order through a motion 
to reconsider or judicial review.

D. Motions To Reopen or Reconsider a Final Order Filed During the 
Voluntary Departure Period

    This rule responds to one of the principal policy arguments offered 
in support of tolling. In many cases, the alien had sought relief or 
protection from removal, which was denied, and the filing of a motion 
to reopen or reconsider is a means for aliens to continue to contest 
the merits of the denied claims or to address eligibility for newly 
discovered relief. Under this rule, aliens who file administrative 
motions to reopen or reconsider prior to the expiration of the time 
allowed for voluntary departure would no longer be subject to the 
penalties for failure to depart, because the grant of voluntary 
departure will be terminated upon the filing of the motion. However, 
they will then be subject to a removal order, as is the case for other 
aliens who had been found to be removable and ineligible for any form 
of relief or protection from removal.
    As noted by the Supreme Court, ``[m]otions for reopening of 
immigration proceedings are disfavored for the same reasons as are 
petitions for rehearing and motions for a new trial on the basis of 
newly discovered evidence.'' INS v. Abudu, 485 U.S. 94, 107-08 (1988). 
This is ``especially true in a deportation proceeding, where, as a 
general matter, every delay works to the advantage of the deportable 
alien who wishes merely to remain in the United States.'' Doherty, 502 
U.S. at 323.
    However, the Department recognizes that Congress has provided that 
aliens may file a motion to reopen or motion to reconsider after a 
final order of removal has been entered in his or her case. Some of 
these aliens may have just received an immediate relative visa 
petition, for example, and wish to file a motion to reopen their case 
to pursue relief through adjustment of status before any adverse 
consequences for failing to timely depart attach under 240B(d) of the 
Act.\4\ Other aliens may believe an error was made in their case, and 
timely seek reconsideration of their decision.
---------------------------------------------------------------------------

    \4\ The Department strongly encourages aliens who are in removal 
proceedings when the visa petition is approved to file a motion for 
remand during the pendency of the proceedings, and not wait until 
after a final order of removal has been entered.
---------------------------------------------------------------------------

    Under this rule, if an alien decides to contest a final 
administrative order by filing a motion to reopen or reconsider after 
having received a grant of voluntary departure, the grant of voluntary 
departure will be automatically terminated. Such aliens will no longer 
have the privilege and responsibility of departing voluntarily and will 
become subject to a removal order, just like other aliens at the 
conclusion of the removal proceedings who are not granted any form of 
relief or protection from removal. This means, however, that they will 
be able to pursue the administrative motion without the risk of being 
subject to the statutory penalties for failing to depart voluntarily.
    This proposal is intended to allow an opportunity for aliens who 
have been granted voluntary departure to be able to pursue 
administrative motions without risking the imposition of the voluntary 
departure penalties, to promote uniformity, and also to bring the 
voluntary departure process back to its statutory premises. The 
proposed rule further recognizes that although an alien may request 
voluntary departure in good faith before an immigration judge, the 
alien's circumstances may change while an appeal is pending before the 
Board, and ensures that the alien is not subsequently penalized when 
such change in circumstances occurs.
    The Department accordingly proposes to amend 8 CFR 1240.26 to 
provide for the automatic termination of a grant of voluntary departure 
upon the timely filing of a motion to reopen or reconsider, as long as 
the motion is filed prior to the expiration of the voluntary departure 
period. By seeking to challenge the final administrative order through 
a post-decision motion to reopen or reconsider, the alien will be 
manifesting that he or she is no longer willing to depart voluntarily 
within the specific number of days as previously allowed by the 
immigration judge or the Board. Put another way, the alien is no longer 
willing to abide by the initial quid pro quo on which voluntary

[[Page 67680]]

departure was predicated. Cf. Banda-Ortiz, 445 F.3d at 389. This means 
that the filing of a motion to reopen or reconsider within the time 
allowed for voluntary departure would terminate the privilege and 
responsibility of voluntary departure, and the alien would become 
subject to the alternate order of removal issued by the immigration 
judge or the Board. The alien, however, would still be able to pursue 
the relief sought through the post-decision motion, and if the motion 
to reopen or reconsider is successful, then such an alien would not be 
subject to the penalties for failing to depart (including the 10-year 
bars on eligibility for adjustment of status or cancellation of 
removal). Assuming the alien is otherwise eligible for new relief 
sought through the filing of a motion to reopen, and merits a favorable 
exercise of discretion, the terminated grant of voluntary departure 
would not pose an impediment to reopening to pursue such relief. 
Moreover, even if the motion to reopen or reconsider is unsuccessful, 
he or she would remain subject to the removal order but would not be 
subject to the penalties under section 240B(d) of the Act for failure 
to depart. Of course, as with any other alien who is subject to a final 
order of removal, DHS is authorized to detain and remove the alien from 
the United States at any time pursuant to section 241 of the Act, 
unless the order of removal has been stayed.
    In the Department's view, extending the period allowed for 
voluntary departure by the filing of a motion to reopen or reconsider 
serves to undermine the basic statutory purpose of the voluntary 
departure agreements, and is not consistent with the Act. See Chedad, 
497 F.3d at 64 (``These provisions [relating to limits on voluntary 
departure] reflect a coherent effort to ensure that voluntary departure 
does, in fact, result in the alien's expeditious departure from the 
United States. Reading [the provision allowing for one motion to reopen 
within 90 days of a final administrative order] as stopping the 
voluntary departure clock would contravene this purpose, allowing the 
filing of motions to reopen to delay voluntary departure dates.''). 
This proposed rule provides that aliens who file a motion to reopen or 
reconsider within the period allowed for voluntary departure are 
thereby exempted from the penalties for failure to depart voluntarily 
under section 240B(d) of the Act. This approach avoids any perceived 
tension between the statutory provisions relating to motions to reopen 
or reconsider and the statutory penalties for failure to depart 
voluntarily. Since the grant of voluntary departure is terminated 
automatically upon the filing of a motion to reopen or reconsider 
during the voluntary departure period, there is no period of voluntary 
departure to toll during the pendency of the motion to reopen or 
reconsider.

E. Motions To Reopen or Reconsider Filed After the Period for Voluntary 
Departure Has Elapsed

    The issues are very different, however, if the alien's motion to 
reopen or reconsider is not filed until after the period of voluntary 
departure has elapsed, at a time when--because of the alien's failure 
to depart voluntarily within the time allowed--the penalties under 8 
U.S.C. 1229c(d), including the 10-year bar on certain forms of 
discretionary relief, have already taken effect. If the alien already 
has failed to comply with his undertaking voluntarily to depart from 
the United States by the time his motion is filed, he is now properly 
barred from relief under that section.
    In general, where an alien does not file a motion to reopen until 
after the expiration of the voluntary departure period, the Board's 
grant of reopening does not have the effect of relieving the alien from 
the consequences of having failed to depart before the voluntary 
departure period expired. See Singh v. Gonzales, 468 F.3d 135, 139-40 
(2d Cir. 2006); Dacosta v. Gonzales, 449 F.3d 45, 50-51 (1st Cir. 
2006). But cf. Orichitch v. Gonzales, 421 F.3d 595 (7th Cir. 2005) 
(holding that the Board's grant of reopening had the effect of vacating 
the underlying voluntary departure order where a joint motion to reopen 
was executed but not filed prior to expiration of the voluntary 
departure period).
    With respect to motions to reopen filed after the expiration of the 
voluntary departure period, to conclude that the granting of such a 
motion would vitiate or vacate the penalties that had already taken 
effect because of the alien's previous failure to depart voluntarily 
would effectively undermine the relevance of such penalties in this 
context. Aliens who are subject to a final order of removal cannot seek 
relief from removal from an immigration judge or the Board (such as 
adjustment of status or cancellation of removal) unless they are 
successful in reopening their final orders. Thus, prior to the granting 
of a motion to reopen, such aliens are unable to obtain such relief for 
reasons independent of the voluntary departure penalties. However, if 
the mere fact of granting a motion to reopen had the effect of vacating 
the voluntary departure penalties, after those penalties had already 
taken effect as a result of the alien's failure to depart during the 
period allowed for the voluntary departure, then the intended effect of 
those penalties in deterring aliens from overstaying the period of 
voluntary departure would clearly be diminished. Accordingly, this 
proposed rule would provide that the granting of a motion to reopen or 
reconsider that was filed after the penalties under section 240B(d) of 
the Act had already taken effect does not have the effect of vitiating 
or vacating those penalties, except as provided in section 240B(d)(2) 
of the Act.
    The Board recently concluded that there is no equitable basis for 
creating an exception to the statutory penalties for aliens who 
voluntarily fail to depart during the period allowed for voluntary 
departure. Matter of Zmijewska, 24 I&N Dec. 87, 93 (BIA 2007) (``The 
congressional repeal of the `exceptional circumstances' exception to 
the voluntary departure penalty soon after our decision in Matter of 
Grijalva, [21 I&N Dec. 472 (BIA 1996)], and its replacement with a 
`voluntariness' test strongly suggest that Congress did not intend to 
allow the Board and the courts to create and apply a set of equitable 
exceptions that would amount to a substitute version of the repealed 
`exceptional circumstances' exception.'').\5\
---------------------------------------------------------------------------

    \5\ Matter of Zmijewska does note that Congress has provided one 
specific exception to the imposition of the statutory penalties for 
failure to depart, with respect to the recently enacted exception in 
cases of extreme cruelty or battery. Id. The enactment of one 
specific exception for this limited category of cases is evidence of 
congressional intent not to contemplate exceptions in other 
circumstances.
---------------------------------------------------------------------------

    The Board also noted that the statutory penalties do not apply if 
the alien was unaware of the voluntary departure order or was 
physically unable to depart. See Matter of Zmijewska, 24 I&N Dec. at 94 
(finding that the ``voluntariness'' exception is ``limited to 
situations in which an alien, through no fault of his or her own, is 
unaware of the voluntary departure order or is physically unable to 
depart. It would not include situations in which departure within the 
period granted would involve exceptional hardships to the alien or 
close family members. Nor would lack of funds for departure be 
considered an involuntary failure to depart.''). However, the Board's 
decision raises broader questions with respect to ineffective 
assistance of counsel that are not addressed in this rule.

[[Page 67681]]

V. Voluntary Departure and Filing Petitions for Review

    Section 242 of the Act (8 U.S.C. 1252) gives aliens the 
opportunity, with certain exceptions, to seek circuit court review of a 
final order of removal by filing a petition for review within 30 days 
of the final administrative order.
    In the experience of the Department, aliens who have been granted 
voluntary departure routinely file petitions for review pursuant to 
section 242 of the Act and seek a stay, with the result of delaying the 
voluntary departure obligation for many months or even years, while the 
petition for review is adjudicated in the courts of appeals. This rule 
also proposes new measures to avoid such open-ended extensions of the 
period of time authorized by Congress for aliens to depart voluntarily. 
Again, as noted above, this proposal reflects an exercise of the 
Attorney General's authority to implement the voluntary departure 
provisions, as well as to limit eligibility for voluntary departure for 
certain classes or categories of aliens, as provided in section 240B(e) 
of the Act.

A. Divergent Circuit Motions Practice Concerning the Impact on the 
Voluntary Departure Period of Filing a Petition for Review

    Extensive litigation has resulted from the question of whether a 
court of appeals may stay the running of the voluntary departure period 
while a petition for review is pending. These decisions have resulted 
in a non-uniform, patchwork system of motions practice in the courts of 
appeals concerning the effect of filing a petition for review on the 
voluntary departure period. No court of appeals has held that the mere 
filing of a petition for review automatically stays or tolls the 
running of the voluntary departure period. But several circuits have 
found that not only do they have authority to stay voluntary departure 
periods provided by statute, but that an alien need not even make a 
specific request for such a stay, if they file a motion for a stay of 
removal. The Sixth, Eighth and Ninth Circuits now follow this course, 
construing a request for a stay of removal as a request for a stay of 
the voluntary departure period. See Macotaj v. Gonzales, 424 F.3d 464, 
466 (6th Cir. 2005); Rife v. Ashcroft, 374 F.3d 606, 614-15 (8th Cir. 
2004); Desta v. Ashcroft, 365 F.3d 741, 743 (9th Cir. 2004).
    Other circuit courts have allowed for a stay of the voluntary 
departure period if it is explicitly requested within the time period. 
See Vidal v. Gonzales, 491 F.3d 250 (5th Cir. 2007); Iouri, 487 F.3d at 
85; Obale v. United States Att'y Gen., 453 F.3d 151, 156 (3d Cir. 
2006); Bocova, 412 F.3d at 268; Lopez-Chavez v. Ashcroft, 383 F.3d 650 
(7th Cir. 2004). The Seventh Circuit has required a petitioner to file 
a request to extend the voluntary departure period with the district 
director to meet the exhaustion requirement. See Alimi v. Ashcroft, 391 
F.3d 888, 893 (7th Cir. 2004).
    The Fourth Circuit has held that it does not have authority to toll 
the period. Ngarurih, 371 F.3d at 194. The Eleventh and Tenth Circuits 
have not directly addressed the tolling issue, but have held, as have 
all other circuits that have addressed this issue, that the courts of 
appeals do not have authority to reinstate or extend the voluntary 
departure period. See Nkacoang v. INS, 83 F.3d 353, 357 (11th Cir. 
1996); Castaneda v. INS, 23 F.3d 1576, 1578 (10th Cir. 1994).
    The circuit courts that held they have authority to stay the 
voluntary departure period have based their decision either on the 
equitable power of the courts of appeals to issue a stay or on the 
theory that 28 U.S.C. 2349 contains a statutory grant of authority. 
See, e.g., Obale, 453 F.3d at 155 n.1.
    Over the last four fiscal years, in roughly 40% of the cases in 
which the alien was granted voluntary departure with an alternate order 
of removal, the aliens have filed petitions for review with the courts 
of appeals. Voluntary departure is intended as a benefit to both the 
alien and the government, operating as an agreement whereby both sides 
receive benefits. Chedad, supra. Like tolling during the pendency of a 
motion to reopen, suspending the voluntary departure period and the 
alien's obligation to depart, during the pendency of a petition for 
review, deprives the government of one of the principal considerations 
of the underlying voluntary departure agreement--a quick departure 
without the considerable expense of protracted litigation. Moreover, 
the delays attributable to the pendency of judicial review frequently 
result in extending the period allowed for voluntarily departure much 
longer than the delays attributable to the filing of administrative 
motions with the Board, in some cases allowing an additional two or 
three years before the alien is required to depart.
    Where the court has stayed the period for voluntary departure, the 
alien is not required to depart the United States until the very end of 
the litigation process, after exhausting all opportunities for 
administrative or judicial relief. But all aliens who have been ordered 
removed and have exhausted all opportunities for overturning the final 
order are under a legal obligation to depart the United States. Aliens 
who benefit from automatic tolling or judicial stays and are permitted 
to remain in the United States until the conclusion of all litigation 
challenges are effectively allowed to render nugatory the statutory 
premise that aliens who seek and are granted voluntary departure are 
expected to depart promptly from the United States upon issuance of a 
final order, in exchange for the benefits of voluntary departure, which 
was granted to them at their own request and was based on their proof 
of their intention and ability to depart the United States within the 
time allowed.
    Moreover, as a legal matter, petitions for judicial review differ 
from post-order administrative motions, in that an alien is not 
precluded from pursuing such a petition after the alien has departed 
from the United States. See, e.g., Zazueta-Carrillo v. Ashcroft, 322 
F.3d 1166 (9th Cir. 2003) (``We now may entertain a petition after the 
alien has departed. See 8 U.S.C. 1252(b)(3)(B) (replacing 8 U.S.C. 
Sec.  1105a(c)).''); Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 n.8-
13 (9th Cir. 2006). This contrasts with motions to reopen or 
reconsider, which generally cannot be filed after an alien's departure 
and are deemed to be withdrawn by the alien's departure, whether 
voluntary or not. Cf. 8 CFR 1003.2(d) and 1003.23(b)(1) (motions before 
the Board and immigration judges are deemed withdrawn upon an alien's 
departure from the United States).\6\ Thus, an alien is able to depart 
from the United States after filing a petition for review without 
impairing his or her opportunity to obtain judicial review.\7\ This 
means that aliens are able to pursue judicial review while at the same 
time also complying with the grant of voluntary departure (though it is 
evidently rare as a matter of fact for an alien to depart the United 
States within the period allowed for

[[Page 67682]]

voluntary departure after filing a petition for review).
---------------------------------------------------------------------------

    \6\ But see William v. Gonzales, 499 F.3d 329, 333 (4th Cir. 
2007) (concluding that 8 U.S.C. 1229a(c)(7)(A) ``clearly and 
unambiguously grants an alien the right to file one motion to 
reopen, regardless of whether he is present in the United States 
when the motion is filed.''); Li, 473 F.3d at 982 (interpreting 
section 1003.2(d) not to bar the filing of a motion to reopen if the 
alien was the subject of a final order of removal at the time of 
departure).
    \7\ See Mendez-Alcaraz, 464 F.3d at 844 nn.8-13 (holding that 
IIRlRA's permanent rules, effective April 1, 1997, ``do not include 
the old jurisdiction-stripping provision for excluded, deported, or 
removed aliens'' under former 8 U.S.C. 1105a(c); that the court 
retains jurisdiction over a petition for review after an alien has 
departed; and that a petitioner's removal does not render a case 
moot).
---------------------------------------------------------------------------

B. The Proposed Rule

    This rule would respond to one of the principal policy arguments 
offered in support of a stay during the pendency of judicial review. 
Under this rule, if an alien decides to contest a final administrative 
order by filing a petition for review before departing the United 
States, the grant of voluntary departure will be terminated 
automatically. Such aliens will no longer have the privilege or 
responsibility of departing voluntarily and will become subject to a 
removal order, just like every other alien at the conclusion of the 
removal proceedings who is not granted any form of relief or protection 
from removal. This means, however, that they will be able to pursue 
judicial review without the risk of being subject to the stat