join, dissenting from the denial of rehearing en banc:
Congress enacted a new definition of “continuous physical presence” in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-546 (1996): Although the pre-1996 Immigration and Nationality Act (INA) provided that “brief, casual, and innocent” departures were not breaks in continuous presence, see 8 U.S.C. § 1254(b)(2) (repealed 1996), IIRIRA excised that language and substituted the following:
Treatment of certain breaks in presence. An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.
8 U.S.C. § 1229b(d)(2).
Despite this evident change in the relevant statutory regime, the panel’s opinion resurrects the pre-IIRIRA concept of “brief, casual, and innocent” departures. The opinion consequently denies Vasquez-Lopez eligibility for cancellation of removal under 8 U.S.C. § 1229b(b)(l) because his departure, although for fewer than 90 days, was under threat of deportation. We should have reheard this case en banc in order to give effect to the language Congress chose: “When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.” Stone v. INS, 514 U.S. 386, 397, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). Instead, the panel opinion consigns IIRI-RA’s significant change , in the continuous physical presence section of the INA to the dead letter box.
I
In 1984, the Supreme Court in INS v. Phinpathya, 464 U.S. 183, 189-90, 104 S.Ct. 584, 78 L.Ed.2d 401 (1984), reversed this court because, disregarding the plain words of the INA as it then read, we had created an exception to the continuous physical presence requirement for suspension of deportation in cases of non-“meaningfully interruptive” departures. Said the Court:
The ordinary meaning of these words does not readily admit any “exception[s] to the requirement of seven years of ‘continuous physical presence’ ” in the United States to be eligible for suspension of deportation.... [Without a moderating provision,] Congress meant this “continuous physical presence” requirement to be administered as written.
Id. (internal citation omitted); see also id. at 195, 104 S.Ct. 584 (construing the INA to broaden the Attorney General’s discretion improperly shifts authority to define the “continuous physical presence” requirement “from Congress to INS and, eventually, as is evident from- the experience in this case, to the courts”).
Congress amended the statute after Phinpathya to provide an exception for absences that were “brief, casual, and in*964nocent” and did not “meaningfully interrupt” an alien’s continuous physical presence. See 8 U.S.C. § 1254(b)(2) (repealed 1996). Applying the amended statute, we concluded that a voluntary departure under threat of deportation is “not a brief, casual, and innocent absence from the United States” under former section 1254(b)(2). See Hernandez-Luis v. INS, 869 F.2d 496, 498 (9th Cir.1989).
IIRIRA eliminated the “brief, casual, and innocent” exception, substituting a bright-line rule stating that the continuous physical presence requirement is not met if there is a single departure of more than 90 days or aggregate absences of more than 180 days. The former “brief, casual, and innocent” standard that 8 U.S.C. § 1229b(d)(2) replaced was preserved in two other parts of the statute in which it also existed before IIRIRA. See 8 U.S.C. §§ 1254a(c)(4) (temporary protected status), 1255a(a)(3)(B) (adjustment of status for pre-1982 entrants); accord 8 U.S.C. §§ 1254a(c)(4) (1995), 1255a(a)(3)(B) (1995).
Setting aside Congress’s 1996 alterations and ignoring its deliberate inaction elsewhere in the INA,1 the opinion in this case accomplishes once more precisely what Phinpathya told us we could not: amending the statute Congress wrote. This time, the panel reads the “brief, casual, and innocent” standard back into the continuous physical presence provision, retaining the regime affirmatively deleted by Congress and replaced by a single, objective, clear rule. In doing so, the panel produces a statutory interpretation that is at odds with the approach taken by the Tenth Circuit when it analyzed the new continuous physical presence requirement of 8 U.S.C. § 1229b(d)(2). See Rivera-Jimenez v. INS, 214 F.3d 1213, 1218 (10th Cir.2000) (remanding the question to the BIA after commenting: “We agree with the INS that petitioners’ two-week return to Mexico in lieu of being placed in deportation proceedings was not brief, casual or innocent. See Hernandez-Luis v. INS, 869 F.2d 496, 498 (9th Cir.1989).... This is irrelevant, however, in light of the IIRI-RA’s special rules relating to continuous physical presence.”).
Judicial amendment of the INA is no more proper when it limits aliens’ rights than when it enhances them. Section 1229b(d)(2) should therefore be read as a “moderating provision,” Phinpathya, 464 U.S. at 190, 104 S.Ct. 584, creating an exception to the continuous physical presence requirement for any departure of 90 days or fewer, as long as the alien’s absences do not exceed 180 days in the aggregate.
II
In deciding otherwise, the opinion claims to defer to the Board of Immigration Appeals’ (BIA’s) interpretation of the post-IIRIRA INA to include the now-superseded standard, invoking Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The BIA’s decision addressing the meaning of 8 U.S.C. § 1229b(d)(2), In re Romalez-Alcaide, 23 I. & N. Dec. 423, 2002 WL 1189034 (BIA 2002) (en banc), is not, however, entitled to Chevron deference.
*965I am unconvinced that section 1229b(d)(2) is sufficiently ambiguous on its face to survive the first prong of Chevron.2 But even if I am wrong in that regard, an agency interpretation that adds to the statute “something which is not there” cannot stand. United States v. Calamaro, 354 U.S. 351, 359, 77 S.Ct. 1138, 1 L.Ed.2d 1394 (1957). As this court has had occasion to note:
The power of an administrative officer or board to administer a federal statute and to prescribe rules and regulations to that end is not the power to make law, for no such power can be delegated by Congress, but the power to adopt regulations to carry into effect the will of Congress as expressed by the statute. A regulation which does not do this, but operates to create a rule out of harmony with the statute, is a mere nullity.
Cal. Cosmetology Coalition v. Riley, 110 F.3d 1454, 1460-61 (9th Cir.1997) (quoting Manhattan Gen. Equip. Co. v. Comm’r, 297 U.S. 129, 134, 56 S.Ct. 397, 80 L.Ed. 528 (1936)). Because its inventive statutory interpretation cannot for a number of reasons be reconciled with Congress’s 1996 amendments regarding breaks in continuous physical presence, Romalez-Alcaide is not worthy of deference. See Chevron, 467 U.S. at 844, 104 S.Ct. 2778 (“a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency”) (emphasis added).
First, the BIA’s interpretation condemns section 1229b (d)(2) to mere sur-plusage: If the provision is not viewed as a limitation on the continuous physical presence requirement, then there is no explicit limitation based on brevity of absence. Phinpathya precludes recognition of any implicit limitation. Section 1229b(d)(2) then loses all purpose: Without any explicit or implicit exception for shorter departures, there is no reason to provide that absences of more than a specified number of days are breaks in continuous physical presence. So the BIA’s conclusion that “the statute does not specifically exempt all such shorter departures” and that “the statutory language ... does not literally forgive any single departure of 90 days or less or aggregate departures of 180 days or less,” Romalez-Alcaide, 23 I. & N. Dec. at 425-26, cannot be squared with Phin-pathya.
Second, one of the BIA’s rationales— referred to by the panel opinion — is that section 1229b(d)(2)’s title (“Treatment of certain breaks in presence ”) clarifies Congress’s intent not to define all breaks in physical presence. But Congress was undoubtedly referring to other parts of the INA that address the issue, see, e.g., 8 U.S.C. § 1229b(b)(2)(B),3 not to agency-*966created, unenumerated exceptions to the language of the statute. Cf Bhd. of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 529, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947) (“the heading of a section cannot limit the plain meaning of the text”).
Third, the Romalez-Alcaide majority improperly considered what it called “Related Regulations,” the same regulations relied on by the panel opinion in this case. Those regulations implement the post-IIR-IRA Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA), Pub.L. No. 105-100, 111 Stat. 2160, 2193 (1997), amended by Pub.L. No. 105-139, 111 Stat. 2644 (1997).4 The Romalez-Alcaide majority held that, given the binding nature of regulations on the BIA, “even though the regulation specifically applies only in the context of NACARA applications ... it is not apparent how we could find the respondent eligible for cancellation of removal without adopting a construction of the statute that is directly at odds with the position adopted by the Attorney General in 8 C.F.R. § 240.64(b)(3).” 23 I. & N. Dec. at 428; but see id. at 445 (Board Member Rosenberg, dissenting) (“we exceed our authority if we proceed to read a provision that simply seems ‘related’ into the regulations applicable to the respondent”). As all the BIA Board Members and the panel in this case agree, the regulation does not apply except to NA-CARA. It therefore deserves no Chevron deference save with regard to NACARA.
Fourth, as the panel itself recognizes, see Amended Opinion, post, at 972 n. 2, Romalez-Alcaide incorrectly drew upon the INA’s reinstatement provision, 8 U.S.C. § 1231(a)(5), to support its holding. In a statement that is astonishingly misleading, the BIA majority wrote that “[u]n-der the respondent’s construction of the statute, an alien who departed under a formal order of removal could nevertheless retain eligibility for cancellation of removal, despite this statutory bar to all relief for persons who illegally return after being removed.” Romalez-Alcaide, 23 I. & N. Dec. at 426. This reasoning is nonsensical. Romalez Alcaide, had he been removed, would, to the contrary, be ineligible for cancellation of removal upon his return. Section 1231(a)(5) says so, quite independently of any continuous physical presence requirement.5 But Romalez-Alcaide, like Vasquez-Lopez, was at no time subject to an order of removal, so section 1231(a)(5) is inapplicable to him. Section 1231(a)(5) can be enforced separately, without affecting administrative voluntary departures.
Fifth, after flailing for (and failing to find) any plausible statutory grounding for its holding, the Romalez-Alcaide majority relies on its understanding of IIRIRA’s *967purpose. See Romalez-Alcaide, 23 I. & N. Dec. at 429 (“Congress sought to deter illegal immigration to the United States by curbing the incentive for aliens to extend their stays in this country and prolong their cases in order to gain immigration benefits.”). I discuss below, in part IV, why this argument fundamentally misunderstands Congress’s provision for cancellation of removal in the INA.
In short, Romalez-Alcaide provides no analytical sustenance for the panel’s decision.
Ill
Bereft of statutory underpinning for its holding, the panel opinion deploys IIRI-RA’s “stop time” rule to justify its decision. See Amended Opinion, post, at 13494-95 (“[T]o regard [petitioner] as having maintained his physical presence would be inconsistent with the statutory concept of voluntary departure and with the ‘stop time’ provisions of § 1229b(d)(l) in particular.”). But the “stop time” provision does not apply to the class of aliens which includes Vasquez-Lopez, for whom removal proceedings are never instituted and a Notice to Appear (formerly an Order to Show Cause) never issued. See Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001); 8 U.S.C. § 1229b(d)(l) (“any period of continuous residence or continuous physical presence in the United States shall be deemed to end ... when the alien is served a notice to appear ”) (emphasis added).
Congress could have made the “stop time” rule apply to aliens who take voluntary departure in lieu of being served with a Notice to Appear, but chose not to do so. See also 8 U.S.C. § 1229b(c) (omitting the category of those who accept administrative voluntary departure from “Aliens Ineligible for Relief”). Section 1229b(d)(l), therefore, supports my understanding of the continuous physical presence provision, not the panel’s: Congress evidently decided to treat aliens subject to removal proceedings, with their attendant protections (and delays), differently from apprehended aliens for whom such proceedings were never instituted. Although the panel opinion regards that distinction as anomalous, Congress believed otherwise.
IV
In its ardor not to reward an alien who returned to the United States after taking administrative voluntary departure, the panel exhibits a myopic understanding of immigration law. Through IIRIRA, Congress made the strictures leading to cancellation of removal extremely onerous, tightening the former requirements for suspension of deportation. See Romero-Torres v. Ashcroft, 327 F.3d 887, 889 & n. 4 (9th Cir.2003). At the same time, Congress did intend some counterweight to the general policy of not rewarding extended illegal stays. Otherwise, there would be no cancellation of removal proviso at all.
Allowing aliens like Vasquez Lopez to attempt passage through the eye of one of 4,000 needles does not run counter to the general restrictiveness of the post-IIRIRA INA.6 Instead, fairly evaluating the continuous physical presence requirement merely implements a second, equally valid congressional policy, recognizing the need for exceptions in rare situations — those in which the alien can show “exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully ad*968mitted for permanent residence.” 8 U.S.C. § 1229b(b)(l)(D). This very limited availability of cancellation of removal, like suspension of deportation before IIRI-RA, effects “Congress’s judgment that presence of [extended] length was likely to give rise to a sufficient commitment to this society through establishment of roots and development of plans and expectations for the future to justify an examination by the Attorney General of the circumstances of the particular case to determine whether deportation would be unduly harsh.” Kamheangpatiyooth v. INS, 597 F.2d 1253, 1256 (9th Cir.1979).
Such pockets of immigration law, it is true, include counter-intuitive incentives to come illegally to the United States and to remain here. In this sense, the field is the legal equivalent of non-Euclidean geometry. The panel nonetheless tries to conjure a straight line out of one of the INA’s curvatures. In that attempt the opinion not only contravenes well-established principles of statutory interpretation but is also oblivious to the ethos of much of the immigration system that we as judges encounter.
Cancellation of removal is a perfect illustration. To have even a chance of obtaining this form of relief, which is rationed by quota such that it amounts to a lottery of mercy, aliens are better off if they keep breaking the law by remaining undetected for ten years. So it is no proof of Congress’s intent regarding the availability of cancellation of removal to aliens in Vasquez Lopez’s situation that the statute, overall, aims to facilitate removal of illegal aliens. Rather, the INA does provide some possibility of relief from removal for some illegal aliens and, with precision, separates those illegal aliens who may merit cancellation of removal from those who do not. Under the statute’s terms, an alien’s repeated illegal entry after an administrative voluntary departure is simply not dis-positive of this inquiry.
That aliens such as Vasquez-Lopez necessarily entered illegally twice rather than once can be considered under the “good moral character” prong of the cancellation of removal test. See 8 U.S.C. §§ 1229b(b)(l)(B), 1101(f)(8) (“The fact that any person is not within any of the foregoing classes shall not preclude a finding that for. other reasons such person is or was not of good moral character.”). My reading of the INA thus leaves the implementation of section 1229b(d)(2) to the agency for case-by-case resolution, while the panel’s interpretation reimposes an across-the-board exclusion that Congress excised. See Cardoza-Fonseca, 480 U.S. at 448, 107 S.Ct. 1207 (“The narrow legal question whether the two standards [an old and a new one] are the same is, of course, quite different from the question of interpretation that arises in each case in which the agency is required to apply [the statute] ... to a particular set of facts.”).
In sum, Congress could have continued to include the “brief, casual, and innocent” standard in the post-IIRIRA INA for purposes of continuous physical presence. It did not. Congress could have made administrative voluntary departures a ground of ineligibility for cancellation of removal. It did not. Congress could have applied the “stop time” rule to illegal aliens who accept administrative voluntary departures, rather than requiring a Notice to Appear to end the accrual of continuous physical presence. It did not.
The panel in Vasquez-Lopez and the BIA majority in Romalez-Alcaide nevertheless acted as super-legislatures, relying on their perception that Congress had “ inadvertently negated the effect of the respondents’] departures for purposes of accruing continuous physical presence.” Romalez-Alcaide, 23 I. & N. Dec. at 429 *969(emphasis added). Neither agencies nor courts are authorized to repair Congress’s supposed statutory oversights. We are bound to follow IIRIRA’s amendments as they exist, not as they might look if Congress shared the panel’s and the BIA majority’s policy preferences.
I therefore respectfully dissent from the denial of rehearing en banc.
. The static language of the two "brief, casual, and innocent” provisions that Congress left untouched in IIRIRA supports the conclusion that Congress would have been explicit had it wanted to preserve such an exception to the continuous physical presence requirement. See INS v. Cardoza-Fonseca, 480 U.S. 421. 432. 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (holding that if "Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (quotation marks and citation omitted).
. In a Chevron analysis, the first step is to consider "whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. "If Congress has done so, the inquiry is at an end; the court 'must give effect to the unambiguously expressed intent of Congress.' ” Food & Drug Admin, v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778); see also INS v. St. Cyr, 533 U.S. 289, 320 n. 45, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) ("We only defer ... to agency interpretations of statutes that, applying the normal tools of statutory construction, are ambiguous.”) (internal quotation marks and citations omitted).
. This provision states in relevant part that: "an alien shall not be considered to have failed to maintain continuous physical presence by reason of an absence if the alien demonstrates a connection between the absence and ... battering or extreme cruelty perpetrated against the alien. No absence or portion of an absence connected to the battering or extreme cruelty shall count toward the 90-day or 180-day limits established in subsection (d)(2).”
. The regulations state that for aliens who fall under NACARA, "the applicant shall be considered to have failed to maintain continuous physical presence in the United States if he or she has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days. The applicant must establish that any period of absence less than 90 days was casual and innocent and did not meaningfully interrupt the period of continuous physical presence in the United States,” 8 C.F.R. § 240.64(b)(2), and also that "a period of continuous physical presence is terminated whenever an alien is removed from the United States under an order issued pursuant to any provision of the Act or the alien has voluntarily departed under the threat of deportation or when the departure is made for purposes of committing an unlawful act.” Id. § 240.64(b)(3).
. See 8 U.S.C. § 1231(a)(5) ("If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this Act, and the alien shall be removed under the prior order at any time after the reentry.”) (emphasis added).
. Cancellation of removal applies only to a small group of aliens, out of which no more than 4,000 can be granted relief per fiscal year. See 8 U.S.C. § 1229b(e)(l). In 1997, the first year that the quota was in effect, the limit was reached in the month of February. See Stephen H. Legomsky, Immigration and Refugee Law and Policy 465 (1997).