dissenting:
The panel majority today unnecessarily creates a circuit split on an important issue of immigration law and ensures that a sizable number of aliens facing departure will be effectively unable to avail themselves of the statutory right to file one good-faith motion to reopen, regardless of the merit of their underlying claims. Because Congress could not possibly have intended this result, I respectfully dissent.
I.
We are the fourth circuit to consider this precise question: Does a timely filed motion to reopen toll an alien’s voluntary departure period?1 We are the first to answer in the negative. Normally “we begin with trepidation in the face of the solid array of ... federal courts of appeals” that have reached the same conclusion, because “[w]e are always chary to create a circuit split.” Alfaro v. Comm’r, 349 F.3d 225, 229 (5th Cir.2003). Here, however, the reasons offered by the majority cannot overcome the “high hurdle” of preserving the uniformity of the circuits. See id. at 230.
The majority relies on two principal arguments: first, that it is sensible for aliens who receive the benefits of voluntary departure to incur the costs associated with not leaving the country in a timely fashion, and second, that courts have no authority to extend the voluntary departure period beyond the sixty days authorized by statute.2 The majority errs by searching for Congress’s intent almost exclusively in the set of provisions governing voluntary departure to the detriment of the provisions concerning motions to reopen.
In Azarte, the Ninth Circuit exhaustively studied the history of motions to reopen *392and voluntary departure, including the 1996 codification of both rights in the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), and concluded that tolling was necessary to “avoid creating an incompatibility in the statutory scheme, to implement a workable procedure for motions to reopen in cases in which aliens are granted voluntary departure, and to effectuate the purposes of the two statutory provisions.” Azarte, 394 F.3d at 1289. In particular, before codifying 8 U.S.C. § 1229a(c)(7), which governs motions to reopen, Congress directed the Attorney General to conduct a study on perceived abuses of these motions, and ultimately concluded that the proper way to curb abuse was (1) to limit aliens to one motion to reopen, (2) to require evidence of the factual basis for reopening, and (3) to limit to ninety days the time for filing a motion to reopen.3
In sum, Congress addressed the problem of proliferating motions to reopen by regulating their quantity, quality, and timeliness. Nowhere, however, did Congress suggest that an alien’s traditional right to file a motion to reopen depends on the nature of the order of removal. In fact, § 1229a(c)(7)(C)(i) specifically declines to adopt this limitation, stating only that the motion to reopen shall be filed within ninety days of “a final administrative order of removal” (emphasis added), which includes in its terms an order granting voluntary departure.
I do not quarrel with the general proposition that voluntary departure represents a bargain struck between an alien and the government. See 8 C.F.R. § 240.25(c). I object, however, to limiting our search for the terms of that bargain to statutory provisions conferring benefits on only one of the parties.4 To be sure, IIRIRA “drastically limited” the amount of time available for voluntary departure. See Azarte, 394 F.3d at 1285. The Azarte court, however, correctly refused to read the departure statute in isolation:
[VJoluntary departure and motions to reopen both are the subject of a long, uninterrupted, historic practice in immigration law ... We find absurd the proposition that Congress, while expressly codifying the tradition of motions to reopen, intended sub silentio to preclude their availability in a significant number of cases, likely a substantial majority.
Azarte, 394 F.3d at 1289.
Rather than adopt this more sensible analysis, the panel majority imposes a Hobson’s choice on aliens facing removal. “Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion.” 8 C.F.R. § 1003.2(d). Under this section, an alien subject to forcible removal will automatically forfeit his motion to reopen once deported. Should he attempt to avoid this result by applying for voluntary departure, *393however, he will still forfeit his motion, under the court’s analysis, if he remains in the country past his departure date (which will often come too soon for the agency to consider his motion on the merits).5 If, on the other hand, he complies with the departure order by leaving the country, his leaving would again constitute withdrawal under § 1003.2(d).
It makes little sense why Congress would codify a right to file a motion to reopen “within 90 days of the date of entry of a final administrative order of removal,” § 1229a(c)(7)(C)(i), if, in a substantial number of cases, the order of removal itself would result in forfeiture of the motion. The majority’s rule puts Banda-Ortiz in the “untenable position of having to choose between two equally undesirable alternatives.” In re Wilson, 442 F.3d 872, 878, 2006 WL 574273, at *5 (5th Cir. March 10, 2006).
The result is particularly harsh when one considers that it operates to disadvantage those aliens whose good behavior has entitled them to the solicitude of the law of voluntary departure. To qualify for voluntary departure, one must show, inter alia, good moral character for at least five years before applying, and must not be removable for reason of aggravated felony conviction or for security-related reasons. 8 U.S.C. § 1229c(b)(l). Banda-Ortiz, for example, is employed, has never been convicted of a crime, and has two children who are United States citizens. While his removal proceedings were pending on appeal to the BIA, his younger son was born and was diagnosed with reactive airway disease and chronic allergic rhinitis, which in one doctor’s opinion would require constant medical attention not available in Mexico.
The only means Banda-Ortiz had to introduce these facts as evidence of “exceptional and extremely unusual hardship” to the child, 8 U.S.C. § 1229b(b)(l), was a motion to reopen, requesting adjustment of status. This possibility of intervening circumstances. is precisely what Congress anticipated when it afforded aliens such as Banda-Ortiz the right to file such a motion.6
The panel majority believes it sufficient that its interpretation of the statutes “permit[s] the filing and resolution of a motion to reopen, so long as it does not interfere with the agreed upon voluntary departure date or the Government’s interest in the finality of an alien’s voluntary departure.” But, it cannot accord with due process for the resolution of motions to turn on the happenstance of how quickly an agency can clear its docket during a given thirty-day period.7 The possibility that two ma*394terially similar motions will be treated differently, depending on the extent of administrative backlog at the time of filing, should convince the panel majority that its interpretation leads to absurd results.8
Tolling, by contrast, accords with all of Congress’s objectives in IIRIRA. It preserves the right of all removable aliens to file a single, good-faith motion to reopen after a final adjudicative order of the BIA. It also allows aliens to seek voluntary departure without fear of surrendering other avenues of procedural relief. Finally, it does no damage to Congress’s desire to place reasonable limits on the voluntary departure period: The total time initially allotted for departure (and hence the time available to file to reopen) still cannot exceed sixty days, and limiting claimants to one motion to reopen, supported by evidence of newly-discovered facts, will temper the frequency and duration of tolling.
II.
The panel majority resists this conclusion in part because it believes we lack jurisdiction to toll the voluntary departure period. It cites four cases for this proposition, three of which hail from circuits that have since accepted the position advanced by Banda-Ortiz. See Reynoso-Lopez, 369 F.3d at 280; Zazueta-Carrillo, 322 F.3d at 1172-73; Garcia, 368 F.3d at 1159. The remaining ease, Ngarurih, 371 F.3d at 194, does not require a different result here.
The court in Ngarurih held that it lacked authority to reinstate, or in the alternative, stay the voluntary departure period pending appeal. Id. at 193-94. The court noted, however, that the “most fundamental ]” reason for holding that it lacked jurisdiction was that, under 8 U.S.C. § 1252, the court could continue to hear the merits of a petition for review even after the alien had left the country. See id. at 192-93. Therefore, “an alien may continue to prosecute his appeal of a final order of removal even after he departs the United States, and there is no longer any prospect that the government could manipulate voluntary departure orders to deprive an alien of judicial review.” Id.
Here, however, the government has offered no similar safeguard to provide that an alien can have his motion to reopen heard on the merits if he leaves the United States. In fact, it is undisputed that, if Banda-Ortiz had left the country pursuant to his voluntary departure order, he would have automatically forfeited his motion under § 1003.2(d). Ngarurih, by contrast, received full consideration of his asylum application, notwithstanding that he overstayed his departure period. Id. at 188-91. I would merely ask the court to extend the same courtesy to a petitioner filing a motion to reopen.9
The panel majority also believes we cannot toll because tolling contravenes the text of § 1229c(b)(2), which provides that “[pjermission to depart voluntarily under this subsection shall not be valid for a period exceeding 60 days,” and 8 C.F.R. § 1240.26(f), which vests sole jurisdiction *395“to extend the time in which to depart voluntarily” in specific executive officials. Although I admire the majority’s attention to statutory and regulatory text, a strict reading of these provisions proves both too much and too little in this case.
It proves too much because it calls into question a longstanding practice of the agency that the majority cannot intend to assail — the tolling of the voluntary departure period pending appeal to the BIA.10 If the voluntary departure period cannot exceed sixty days under any circumstance, an alien would risk more than a motion to reopen when he elects voluntary departure; he would also put in jeopardy his right to any review of the IJ’s decision.11
It proves too little because we cannot avoid doing some damage to statutory text in this case, because we are faced with conflicting legislative commands. As I have explained, the language of § 1229a(c)(7) is intentionally broad; it does not make exception for aliens subject to voluntary departure and, in fact, it contemplates that any alien facing removal may file a motion to reopen. Therefore, the panel majority’s decision carves out an exception to the motion-to-reopen statute that its text cannot bear.
Even if Banda-Ortiz could not muster strong textual arguments, the majority’s reading of § 1229c(b)(2) would be unpersuasive. It is not enough to defeat an argument for tolling to point out that tolling would undermine the statutory text. It is in the very nature of tolling to suspend the period of time provided by statute for certain actions, when the circumstances of the case require. In fact, the Supreme Court has suggested, at least in the statute of limitations context, that we presume the availability of tolling against the government unless Congress provides otherwise.12
Tolling is particularly appropriate in a case like this, where it is necessary to preserve a statutory right and prevent the creation of a legal Scylla and Charybdis that will inevitably lead to the denial of meritorious claims.13 For these reasons, I would join those circuits that hold that “suspension of a voluntary departure period merely tolls the running of that period; *396it does not extend it.” Bocova v. Gonzales, 412 F.3d 257, 269 (1st Cir.2005).14
As our court encounters an increasing number of immigration cases, we are bound to confront various iterations of the fact pattern before us today, and I have little hope that the mischief caused by this panel majority’s decision will be limited only to the specific circumstances involving Banda-Ortiz. One predictable consequence of today’s decision, for example, is that the immigration bar will hesitate before requesting voluntary departure because of the now-heightened risk that a successful request will result in the automatic denial of all forms of discretionary relief.
We might have avoided the problem by deferring to the accumulated wisdom of our sister circuits. Though the majority finds this weight of authority insufficient, it might at least, out of comity, acknowledge the merit of the competing position by applying the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.” INS. v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). This would promote a fair result for aliens facing removal and would preserve a uniform interpretation of the relationship between the statutory provisions governing voluntary departure and motions to reopen. I respectfully dissent.
. See Kanivets v. Gonzales, 424 F.3d 330 (3d Cir.2005); Sidikhouya v. Gonzales, 407 F.3d 950 (8th Cir.2005); Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir.2005). See also Barroso v. Gonzales, 429 F.3d 1195, 1207 (9th Cir.2005) (holding that tolling occurs even if alien fails to file a separate motion to stay removal).
. See 8 U.S.C § 1229c(b)(2); 8 C.F.R. § 1240.26(f).
. See Azarte, 394 F.3d at 1283-84; 8 U.S.C. § 1229a(c)(7)(A) ("An alien may file one motion to reopen proceedings under this section[.]”); § 1229a(c)(7)(B) ("The motion to reopen shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material.”); § 1229a(c)(7)(C)(i) ("[T]he motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal.”).
. See United States v. Caldera-Herrera, 930 F.2d 409, 411 (5th Cir.1991) (stating that "statutes must be read in harmony with one another so as to give meaning to each provision”).
. Although the immigration judge ("IJ”) has authority to grant up to 60 days' initial departure time after the conclusion of removal proceedings, see 8 U.S.C § 1229c(b)(2), the BIA can typically grant only 30 additional days after the termination of an appeal. See Matter of Chouliaris, 16 I. & N. Dec. 168, 170 (BIA 1977) (holding that where the IJ initially granted more than 30 days' departure time and that period had expired, "the respondent will be given 30 days from the date of our decision in which to depart voluntarily.”). Therefore, even if an alien files a motion to reopen the day the BIA awards voluntary departure, the agency will have at most 30 days to resolve it. This will be unlikely, given the fact that, as of September 30, 2004, there were 33,544 cases pending appeal before the BIA, of which 6,059 had been pending from 2003 or earlier. 2004 EOIR Stat. Y.B. U2.
. "A motion to reopen seeks fresh consideration on the basis of newly discovered facts or a change in circumstances since the hearing[.]” Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, 1-3 Immigration Law and Procedure § 3.05[7][a] (2005). I take no position on whether Banda-Ortiz would ultimately prevail on his claim for adjustment of status.
. Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 434-35, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (concluding that state’s failure to *394convene a timely hearing, through no fault of petitioner, violated due process in part because a "system or procedure that deprives persons of their claims in a random manner ... necessarily presents an unjustifiably high risk that meritorious claims will be terminated”).
. See United States v. Female Juvenile, 103 F.3d 14, 16-17 (5th Cir.1996) ("Axiomatic in statutory interpretation is the principle that laws should be construed to avoid an absurd or unreasonable result.”).
. But see 8 U.S.C. § 1229c(d)(l)(B) (preventing aliens from receiving certain forms of relief for ten years after overstaying the voluntary departure period, but not including an appeal of an asylum application).
. See Matter of Villegas Aguirre, 13 I. & N. Dec. 139, 140, 1969 WL 16928 (BIA 1969) (holding that a timely appeal "tolls the running of the voluntary departure authorization”); Matter of Chouliaris, 16 I. & N. Dec. at 170 (affirming Aguirre to the extent that a "grant of voluntary departure made by an immigration judge shall not be jeopardized by taking an appeal”). This practice strongly suggests that tolling does not constitute "ex-ten[tion]” within the meaning of § 1240.26(f).
. For example, Banda-Ortiz received 60 days' voluntary departure from the IJ on February 23, 2001 (until April 24). He timely appealed on March 26, which tolled the departure period. The BIA did not release its opinion affirming the IJ’s order, and granting 30 additional days for departure, until August 22, 2002, six months after the IJ’s decision.
. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) ("We ... hold that the same rebut-table presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States. Congress, of course, may provide otherwise if it wishes to do so.”). Of course, just because tolling is available by statute does not mean that we will ordinarily grant it. See Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir.2002) (holding that tolling is appropriate in those "rare and exceptional circumstances where it is necessary to preserve a plaintiff’s claims when strict application of the statute of limitations would be inequitable”) (internal quotations and alteration omitted).
. We recently granted tolling for a federal habeas petitioner who waited until the final day of the limitations period to raise a claim under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), in a successive habeas corpus petition. See Wilson, 442 F.3d 872, 878, 2006 WL 574273, at *6. The court reasoned that the petitioner was justified in waiting for the court to rule *396on his initial COA application because he lacked an adequate vehicle for his Atkins claim. Because of a Texas procedural rule prohibiting concurrent state and federal petitions, he faced the "Hobson’s choice” of filing in state court, and dismissing his federal petition (sacrificing review of all his federal claims), or filing concurrently in state and federal court, and defaulting his state petition (but satisfying federal exhaustion requirements). See id. at *5. As in Wilson, tolling is the only way to provide Banda-Ortiz with an adequate procedural means to assert his claim. But see id. at *8 (Garza, J., dissenting) (concluding that equitable tolling, inter alia, "disregarded AEDPA’s statutory scheme.”),
. See also Barroso, 429 F.3d at 1205-06; Lopez-Chavez, 383 F.3d at 653 (holding that § 1240.26(f) does not bind judicial officers).