Court of Appeals for the Tenth Circuit Cases

Monsalvo Velazquez v. Garland

88 F.4th 1301 • 2023-12-14

Citation88 F.4th 1301

Date Filed2023-12-14

Docket22-9576

Cited2 times

StatusPublished

Full Opinion (html_with_citations)

Appellate Case: 22-9576 Document: 010110969149 Date Filed: 12/14/2023 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS December 14, 2023

Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

HUGO ABISAI MONSALVO
VELAZQUEZ,

Petitioner,

v. No. 22-9576
(Petition for Review)
MERRICK B. GARLAND, United States
Attorney General,

Respondent.
_________________________________

ORDER
_________________________________

Before BACHARACH, KELLY, and CARSON, Circuit Judges.
_________________________________

This matter is before the court on Petitioner’s Petition for Panel Rehearing or

Rehearing En Banc and Respondent’s Opposition to Petitioner’s Petition for Panel

Rehearing or Rehearing En Banc. Upon careful consideration of the petition and the

response, we direct as follows.

Pursuant to Fed. R. App. P. 40, Petitioner’s request for panel rehearing is

GRANTED IN PART to the extent of the modifications in the attached revised opinion.

The court’s September 8, 2023 opinion is withdrawn and replaced by the attached revised

opinion, which shall be filed as of today’s date. Because the panel’s decision to partially

grant panel rehearing resulted in only non-substantive changes to the opinion that do not
Appellate Case: 22-9576 Document: 010110969149 Date Filed: 12/14/2023 Page: 2

affect the outcome of this appeal, Petitioner may not file a second or successive rehearing

petition. See 10th Cir. R. 40.3.

The petition, response, and the attached revised opinion were transmitted to all

judges of the court who are in regular active service. As no member of the panel and no

judge in regular active service requested that the court be polled, Petitioner’s request for

rehearing en banc is DENIED. See Fed. R. App. P. 35(f).

Entered for the Court,

CHRISTOPHER M. WOLPERT, Clerk

2
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FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS December 14, 2023

Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

HUGO ABISAI MONSALVO
VELÁZQUEZ,

Petitioner,
No. 22-9576
v.

MERRICK B. GARLAND, United States
Attorney General,

Respondent.
_________________________________

Petition for Review from an Order of
the Board of Immigration Appeals
_________________________________

Henry Douglast Hollithron of Hollithron Advocates, P.C., Denver, Colorado, for
Petitioner.

Corey L. Farrell, (Brian Boynton, Acting Assistant Attorney General, Civil Division,
Sabatino F. Leo, Assistant Director, and Greg D. Mack, Office of Immigration Litigation,
U.S. Department of Justice, on the brief), Washington, D.C., for Respondent.
_________________________________

Before BACHARACH, KELLY, and CARSON, Circuit Judges.
_________________________________

KELLY, Circuit Judge.
_________________________________

Petitioner Hugo Abisaí Monsalvo Velázquez seeks review of the Board of

Immigration Appeals’ (BIA) denial of his motion for reconsideration of the BIA’s

dismissal of his motion to reopen proceedings. Accessing our jurisdiction under 8
Appellate Case: 22-9576 Document: 010110969149 Date Filed: 12/14/2023 Page:

4 U.S.C. § 1252

(b)(1), we deny review because Mr. Velázquez failed to voluntarily

 depart or file an administrative motion within 60 calendar days, the maximum period

 provided by statute. 8 U.S.C. § 1229c(b)(2).

                                       Background

         Mr. Velázquez — a 32-year-old citizen and native of Mexico — entered the

 United States without authorization in 2005. In 2011, the Department of Homeland

 Security (DHS) sought to remove Mr. Velázquez for unlawful entry and served him a

 Notice to Appear (NTA) in immigration court. AR 713–14. The NTA did not

 designate the time or place to appear and was, therefore, deficient according to the

 Supreme Court’s since-issued ruling in Pereira v. Sessions,

138 S. Ct. 2105

, 2113–14

(2018). AR 479. In 2013, Mr. Velázquez admitted to each of the allegations in the

NTA and conceded the sole charge of removability: that he had unlawfully entered

the United States in 2005. Id. 435.

Mr. Velázquez then sought withholding of removal, protection under the

Convention Against Torture (CAT), and, in the alternative, voluntary departure, 8

U.S.C. § 1229c. AR 435. At a March 5, 2019, hearing, an Immigration Judge (IJ)

deemed Mr. Velázquez ineligible for “withholding of removal, either under the

Immigration and Nationality Act or under the torture convention.” Id. 521. The IJ

opted to grant voluntary departure “for 60 days . . . and that will be until May 6 of

2019.” Id. 523. The written order, issued that same day, informed Mr. Velázquez he

would “be granted voluntary departure under Section 240B(b) of the Act in lieu of

removal without expense to the government on or before 60 calendar days from the

2
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date of service of th[e] order.” Id. 439–40. The order also advised that if Mr.

Velázquez “fail[ed] to voluntarily depart the United States within the time frame

specified or within any extensions granted by DHS,” he would face a civil penalty of

$3,000 and “be[come] ineligible for a period of 10 years to receive cancellation of

removal, adjustment of status, registry, voluntary departure, or a change in

nonimmigrant status.” Id. 440. The order also advised Mr. Velázquez that were he

to judicially challenge the order, the grant of voluntary departure would

automatically terminate, and Mr. Velázquez would be removed to Mexico. Id. 440–

41.

Mr. Velázquez retained counsel and appealed from the denial of his

application for relief to the BIA on April 4, 2019. Id. 405–08. On October 12, 2021,

the BIA dismissed Mr. Velázquez’s appeal, affirming the IJ’s decision in full and

reinstating the 60-day voluntary departure period. Id. 386–89. The order advised

that if Mr. Velázquez were to file a motion to reopen or reconsider, the voluntary

departure would terminate and an alternate removal order would come into effect.

Additionally, if Mr. Velázquez sought to petition for judicial review, the allotted

period for voluntary departure would automatically terminate. Id. 388. However, if

Mr. Velázquez left within 30 days of filing such a petition, he would not be subject to

the penalties for failing to voluntarily depart.

On December 13, 2021, Mr. Velázquez filed a motion to reopen his

proceedings to apply for cancellation of removal, 8 U.S.C. § 1229b(b). Pet. Br. at 2;

AR 23–26. Mr. Velázquez relied upon Niz-Chavez v. Garland,

141 S. Ct. 1474


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 (2021), and the fact that in 2011 he had been served a deficient NTA, to argue he had

 accrued 10 years of continuous presence in the United States, a prerequisite to

 eligibility for cancellation. AR 24–25.1

       The BIA denied the motion to reopen based on its finding that Mr. Velázquez

 had not asserted “new facts” previously unavailable,

8 C.F.R. § 1003.2

(c)(1), given

 Mr. Velázquez’s claim for cancellation became viable before his 2019 removal

 hearing and before his appeal from the BIA’s October 12, 2021 decision.2 The BIA

 also found the motion untimely because Mr. Velázquez filed after the 60-day period

 allotted by the BIA, the maximum permitted by statute.3 AR 20. The effect: Mr.

 Velázquez was no longer statutorily eligible for cancellation of removal.4


       1
          To be eligible for cancellation of removal, a nonpermanent resident must
 show continuous residence or physical presence in the United States for 10 years. 8
 U.S.C. § 1229b(b)(1)(A). Generally, once an alien receives an NTA, time may no
 longer be accrued for this purpose. Id. § 1229b(d)(1). In Pereira, the court found
 that an NTA lacking a time and place of removal proceedings (as Mr. Velázquez’s
 was) could not stop the accrual of time for the purpose of § 1229b(d)(1).

138 S. Ct. at 2114

. Niz-Chavez clarified that the “stop-time rule” could also not be triggered by
a later-issued written notice supplying information omitted from the NTA. 141 S. Ct.
at 1485.
2
The Court decided Pereira in June 2018, before Mr. Velázquez’s March 2019
removal hearing. Niz-Chavez was decided on April 29, 2021, while Mr. Velázquez’s
appeal, filed on April 4, 2019, was pending. AR 404. Thus, the BIA found that
based on these developments, Mr. Velázquez had a viable claim for cancellation
eligibility which could have been asserted at the March 2019 hearing or while his
appeal was pending in 2021. AR 19–20.
3
The 60th calendar day fell on Saturday, December 11, 2021. Mr. Velázquez
filed his motion on Monday, December 13, 2021.
4
See 8 U.S.C. § 1229c(d)(1)(B) (“Civil penalty for failure to depart”) (“[I]f an
alien is permitted to depart voluntarily . . . and voluntarily fails to depart the United
States within the time period specified, the alien . . . shall be ineligible, for a period
of 10 years, to receive any further relief under . . . section[] 1229b [cancellation of
removal].”).
4
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Mr. Velázquez filed a timely motion to reconsider, challenging only the

second component of the BIA’s decision — that his motion to reopen was filed

outside the 60-day voluntary departure period. Id. 7–9. In his view, the BIA’s

determination was at odds with the Executive Office of Immigration Review’s

(EOIR) policy concerning filing deadlines coinciding with a weekend or holiday. Id.

8. The BIA denied the motion, finding no statutory or regulatory authority to support

Mr. Velázquez’s desired “exten[sion] [of] the last day of the voluntary departure

period falling on a weekend or a legal holiday to the next business day.” Id. 3. It

explained that the EOIR policy provisions cited by Mr. Velázquez did not speak to

the issue before it as the policies governed filing deadlines, not the voluntary

departure period. Id. 4. Mr. Velázquez filed a petition for review in this court.

Discussion

Mr. Velázquez’s petition presents the question of how time is computed when

60 days’ voluntary departure is granted to a noncitizen pursuant to section 240B of

the Immigration and Nationality Act (INA), 8 U.S.C. § 1229c(a)(1). Specifically,

when the 60th calendar day falls on a weekend or federal holiday, does that day count

in the accrual of voluntary departure time if the grantee files a motion to reopen his

proceedings on the first available business day? This is an issue of first impression

in this court and addressed before by only one other circuit of which we are aware.

See Meza-Vallejos v. Holder,

669 F.3d 920

, 926–27 (9th Cir. 2012). In light of clear

 legislative direction, we uphold the BIA’s interpretation that regardless of what day

 of the week a voluntary departure period expires, an alien moving to reopen or

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 reconsider his removal proceedings must file within 60 calendar days from the date

 the relief is granted.

        The BIA has not issued a precedential disposition on this point. Thus, we

 defer to the BIA’s determination to the extent we find it persuasive. See Carpio v.

 Holder,

592 F.3d 1091

, 1097–98 (10th Cir. 2010) (applying the framework set forth

 in Skidmore v. Swift & Co.,

323 U.S. 134

 (1944), to unpublished, single-member

 decision by the BIA).

        I.      Jurisdiction

        The government contends we lack jurisdiction to decide the issue presented by

 Mr. Velázquez’s petition. It argues the BIA’s denial of reconsideration derives from

 the underlying voluntary departure determination, and because we have no authority

 to review the agency’s discretionary grant of this form of relief under

8 U.S.C. § 1252

(a)(2)(B), Patel v. Garland,

142 S. Ct. 1614

 (2022),5 we are unable to consider

 “any judgment regarding voluntary departure.” Resp. Br. at 36–38.

        We cannot agree. This theory misconstrues the issue and overstates the

 implications of Patel. Section 1252(a)(2)(B)(i) bars judicial review of “any judgment

 regarding the granting of” certain categories of relief. Patel,

142 S. Ct. at 1618, 1622

. Voluntary departure is one such category. See

8 U.S.C. § 1252

(a)(2)(B)(i)

 (precluding review of judgments made under 8 U.S.C. § 1229c). In Patel, the

 Supreme Court clarified this jurisdictional bar extends to underlying factual


        5
         See also 8 U.S.C. § 1229c(f) (“No court shall have jurisdiction over an
 appeal from denial of a request for an order of voluntary departure . . . .”).
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 determinations.

142 S. Ct. at 1627

. Mr. Velázquez does not challenge the BIA’s

 award of voluntary departure, however. Indeed, he himself requested this form of

 relief. AR 435.6 He seeks review of the denial of his motion to reconsider, a

 disposition categorically within our purview. Mata v. Lynch,

576 U.S. 143, 148


 (2015); see

8 U.S.C. § 1252

(b)(6) (providing for judicial review of a motion to

 reopen or reconsider along with a final order of removal).

        We are also unpersuaded by the government’s suggestion that because we lack

 jurisdiction over voluntary departure dispositions it follows that we may not review

 any judgment precipitated by such a decision. See Resp. Br. at 38. For one, we

 retain the authority to review legal questions, notwithstanding that the vehicle for

 their presentment involves a discretionary determination. See Patel,

142 S. Ct. at 1623

id. at 1635

 (Gorsuch, J., dissenting) (“[E]veryone agrees that [

8 U.S.C. § 1252

(a)(2)(D)] restores judicial review of . . . discretionary judgments . . . to the

 extent a legal question . . . is in play.”). More broadly, the fact that Mr. Velázquez,

 at one stage in his proceedings, sought discretionary relief does not undermine our

 ability to review the issues presented by a later judgment regarding his removal.

 Mata,

576 U.S. at 148

 (“That courts lack jurisdiction over one matter . . . does not

 affect their jurisdiction over another . . . .”).




        6
         To the extent the government further suggests that § 1229c(f), which
 deprives courts of “jurisdiction over an appeal from denial of a request for an order
 of voluntary departure[,]” precludes our review, that section plainly does not apply
 here given the IJ granted voluntary departure.
                                                7
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        The government asserts that the motion to reopen was denied on two grounds,

  the first of which — that Mr. Velázquez failed to present previously unavailable

  evidence — is an “independent, dispositive, unchallenged, and undisputed” ground

  for denial. Resp. Br. at 31. Our ruling on the motion for reconsideration, in other

  words, would not alter the outcome of Mr. Velázquez’s motion to reopen to apply for

  cancellation of removal — the underlying form of relief Mr. Velázquez sought. Id. at

  34. We find otherwise. As in all cases, as a prerequisite to our review, this petition

  must present a justiciable conflict the resolution of which can result in “effectual

  relief” to the petitioner. City of Erie v. Pap’s A.M.,

529 U.S. 277, 287

 (2000)

  (quoting Church of Scientology of Cal. v. United States,

506 U.S. 9, 12

 (1992)); see

  Granados-Oseguera v. Mukasey,

546 F.3d 1011

, 1014–1015 (9th Cir. 2008). Mr.

Velázquez concedes he has waived a challenge to the first ground for the BIA’s

denial. See Pet. Br. at 7–8 & 8 n.3. He instead seeks our review of the BIA’s

conclusion that he untimely moved to reopen in violation of the conditions of his

departure, and accordingly faces a monetary fine and ineligibility for future

immigration relief. Thus, our disposition can conceivably result in effectual relief to

Mr. Velázquez.

II. Merits

The INA authorizes the Attorney General to “permit an alien voluntarily to

depart the United States at the alien’s own expense . . . in lieu of” being forcibly

removed. 8 U.S.C. § 1229c(a)(1). Following the conclusion of removal proceedings,

the immigration judge may grant permission to depart not to exceed 60 days. Id.

8
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§ 1229c(b)(2). If an alien fails to depart within the time allotted, he or she must pay

a civil fine and becomes ineligible for certain forms of relief, including adjustment of

status, for ten years. See 8 U.S.C. § 1229c(d)(1) (“Civil penalty for failure to

depart”).

Alternatively, prior to the expiration of the voluntary departure period, a

noncitizen may file a motion to reopen or reconsider. 7 A timely such motion avoids

the penalties associated with failure to voluntarily depart but automatically

terminates the grant of voluntary departure, causing an alternate removal order to

come into effect. If the noncitizen fails to voluntarily depart or move for affirmative

relief within 60 days, in addition to becoming removable, the alien faces penalties

triggered by noncompliance with the conditions of voluntary departure. See

8 C.F.R. § 1240.26

(b)(3)(iii); see also

id.

 § 1240.26(e)(2) (“The filing of a motion to reopen or

  a motion to reconsider after the time allowed for voluntary departure has already

  expired does not in any way impact the period of time allowed for voluntary

  departure . . . .”).

         Mr. Velázquez contends that when a 60-day voluntary departure period expires

  on a weekend day (or legal holiday), a motion to reopen filed on the next available

  business day must be deemed to have been filed within the statutory period. The



         7
          Ordinarily, an alien has 90 days upon the entry of a final administrative order
  of removal to file a motion to reopen and 30 days within which to file a motion to
  reconsider.

8 C.F.R. § 1003.23

(b). As is underscored by the issue presented for
  review, when one agrees to voluntary departure, the time to file a motion to reopen
  effectively decreases.
                                              9
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  government counters that adoption of Mr. Velázquez’s rule necessarily involves

  tolling of the statutory period, a result it argues was considered and rejected by the

  Supreme Court in Dada v. Mukasey,

554 U.S. 1

(2008). Resp. Br. at 8–12. For his

part, Mr. Velázquez insists that this rule does not involve statutory “tolling,” but

mere interpretation of “day” when the final “day” of the voluntary departure period

falls on a weekend or federal holiday. Reply Br. at 16–19.

Mr. Velázquez’s preferred interpretation, he argues, aligns with practice

policies published by the EOIR providing that “when a deadline falls on a weekend

or legal holiday, it is construed to fall on the immediately following business day.”

Pet. Br. at 15 (citing Exec. Off. for Immigr. Rev., Immigr. Ct. Practice Manual

§ 3.1(c)(2)(D) (2022); Exec. Off. for Immigr. Rev., Bd. of Immigr. Appeals Practice

Manual, § 3.1(b)(2)(2022)). Accordingly, he argues that the BIA’s ruling is

inconsistent with EOIR policy concerning other deadlines and thus introduces

“illogic . . . into the computation of deadlines before immigration courts and the

BIA.” Pet. Br. at 15–16.

To the contrary, the BIA’s ruling does not introduce inconsistency into the

immigration appeals process. That “day” is applied in one manner when filing

appeals, motions, or other documents in immigration court or with the BIA and

another when interpreting a maximum time period designated by statute, makes

sense. The same restrictions that apply in the filing context — court or agency

closures — do not prevent one from departing, by, for example, boarding a plane, or

otherwise being transported to one’s chosen destination. While a movant or

10
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petitioner may be afforded until the next business day in the event a filing deadline

falls on a weekend or holiday, that rule simply does not extend to this context.

Although the BIA’s interpretation may effectively require a movant to request

reopening or reconsideration of his case before the expiration of the voluntary

departure period, this would not be an unusual occurrence given a statutory deadline

such as a limitations period.8

Conclusively, this case is governed by § 1229c, which unambiguously states

that while the Attorney General has the discretion to grant voluntary departure, in no

event may the time allotted exceed 60 days.9 8 U.S.C. § 1229c(b)(2); see also Dada,

554 U.S. at 15

 (“To be sure, 8 U.S.C. § 1229c(b)(2) contains no ambiguity: The

  period within which the alien may depart voluntarily ‘shall not be valid for a period

  exceeding 60 days.’”). The fact that one may file a motion to reopen does not

  obviate the conditions attached to voluntary departure: that the immigrant take action



         8
           It would also not be uncommon, even in the filing context, for a litigant to
  need to prepare and dispatch documents well in advance of a deadline to account for
  possible postal delays. See, e.g., Exec. Off. for Immigr. Rev., Bd. of Immigr.
  Appeals Practice Manual, § 3.1(a)(1) (“Receipt rule”); id. § 3.2(b) (“Because paper
  filings are date-stamped upon arrival at the Board, the Board strongly recommends
  that parties filing in paper should file as far in advance of the deadline as possible . . .
  .”). The BIA transitioned to electronic filing in 2022, but filing electronically is not
  available in cases initiated by paper, as Mr. Velázquez’s was. Electronic Case
  Access and Filing, Exec. Off. for Immigr. Rev.,

86 Fed. Reg. 70708

, 70710 (Dec. 12,
  2021) (effective Feb. 11, 2022).
         9
           Implementing regulations provide that though “[a]uthority to extend the time
  within which to depart voluntarily” lies with the “district director, the Deputy
  Executive Associate Commissioner for Detention and Removal, [and] the Director of
  the Office of Juvenile Affairs . . . . In no event can the total period of time, including
  any extension, exceed . . . 60 days . . . .”

8 C.F.R. § 1240.26

(f) (emphasis added).
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  in some form, either by leaving the United States or filing an administrative motion.

  The Court made as much clear in Dada.

554 U.S. at 19

(addressing the intersection

of voluntary departure and filing a motion to reopen; noting the alien’s “obligation to

arrange for departure, and actually depart, within the 60-day period.”). By requesting

and agreeing to voluntary departure, Mr. Velázquez accepted that he would be

obligated to depart within 60 days, as a result of which he would not have 90 days to

file a motion for affirmative relief. See supra n.7. Rather, he would have 57, or 58

days, given that his motion would need to be received by the BIA by December 11.10

The BIA’s determination is further supported by the policy rationale

underpinning voluntary departure. As the Supreme Court described it, inherent in the

voluntary departure agreement is a “quid pro quo.” Dada, 54 U.S. at 11. The

immigrant fulfills his interest in departing to his destination of choice and avoids the

stigma and legal consequences associated with deportation and subsequent reentry

following removal.11 In exchange, the government benefits from an expedited

10
In his reply brief, Mr. Velázquez draws our attention to the IJ’s oral March
5, 2019 order, which indicated that he would have until May 6 to depart, without
objection from the government. Reply Br. at 18–19; AR 523. He notes that 60
calendar days from March 5 was May 4, which fell on a Saturday. In his view, the
fact that the IJ allowed him until Monday, May 6, indicates that the immigration
court agrees with his interpretation. Given this argument was not presented to the
BIA, or in Mr. Velázquez’s opening brief, it is waived. See United States v. Leffler,

942 F.3d 1192, 1197

 (10th Cir. 2019); Torres de la Cruz v. Maurer,

483 F.3d 1013

,
  1022–23 (10th Cir. 2007) (same waiver rules that generally apply to appellate
  practice apply to review of proceedings conducted by the BIA).
         11
            Removed aliens face significant barriers to reentry and in certain
  circumstances, may receive up to 20 years’ imprisonment for unlawfully reentering
  the United States.

8 U.S.C. § 1326

(a)(1)–(2), (b)(2).
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  removal process and avoids the administrative expenses involved in removal and pre-

  removal detention. By electing to remain in the country and pursue an administrative

  motion, Mr. Velázquez chose to forgo the benefits of voluntary departure. Dada,

554 U.S. at 21

 (“[T]he alien has the option either to abide by the terms, and receive the

  agreed-upon benefits, of voluntary departure; or, alternatively, to forgo those benefits

  and remain in the United States to pursue an administrative motion.”).

        The Ninth Circuit rejected the BIA’s interpretation on analogous facts in

  Meza-Vallejos, finding the ruling’s effect was to unfairly “shorten” the statutory

  departure window.

669 F.3d at 927

. Accordingly, it held

               where the last day of a period of voluntary departure falls
               on a day on which an immigrant cannot file a motion for
               affirmative relief with the BIA, that day does not count in
               the voluntary departure period if, as here, the immigrant
               files on the first available day a motion that would either
               have tolled, automatically withdrawn, or otherwise affected
               his request for voluntary departure . . . . [Petitioner’s]
               motion to reopen was timely filed on Monday . . . .

Id.

 The court reasoned, as does Mr. Velázquez, that by its holding it was “not

  extending the voluntary departure period, but rather determining on which day the

  sixtieth day falls.”

Id.

 But despite this creative reasoning, construing a motion filed

  after the lapse of the voluntary departure period as “timely” necessarily extends the

  time an alien has to depart, thus exceeding the scope of relief permitted by statute.

  Cf. 8 U.S.C. § 1229c. In other words, according to the Ninth Circuit’s construction,

  the alien has not 60 days to depart, as he would if he had not filed a motion, but 61

  (or 62, should the voluntary departure period lapse on a Saturday which happens to


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  precede a federal holiday) if he elects to file a motion but waits until the last moment

  to do so.

        To construe “day” in the Ninth Circuit’s and Mr. Velázquez’s preferred

  manner would require the statute to specify that although “permission to depart

  voluntarily . . . shall not be valid for a period exceeding 60 days,” 8 U.S.C.

  § 1229c(b)(2), such permission may exceed 60 days when the removable alien (a)

  elects to file a motion to reopen and (b) the 60th day would fall on a Saturday,

  Sunday, or federal holiday. We cannot reconfigure the statute in this manner. See

  Dada,

554 U.S. at 5

 (rejecting the proposition that voluntary departure should be

  tolled pending resolution of a motion to reopen when that interpretation “would

  reconfigure the voluntary departure scheme in a manner inconsistent with the

  statutory design.”).

        We acknowledge that though voluntary departure shields an individual from

  the harsh consequences of a removal order, accepting relief in this form requires

  careful consideration, given the significant consequences for failure to timely depart.

  If he stays longer in hopes the motion will be successful, he is subject to removal for

  overstaying the voluntary departure period — and becomes ineligible for the very

  form of relief sought — if it is not. In either scenario, the alien faces significant

  legal consequences. However, although the statutory scheme forces an alien to weigh

  two less-than-desirable courses of action, it cannot be said that once one route is

  selected, the consequences for failure to follow through are unreasonable. While

  perhaps harsh, they are compelled by statute. See 8 U.S.C. § 1229c(d)(1).

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        REVIEW DENIED.




                                        15