dissenting in part and concurring in the judgment.
The court adopts the holding of the Ninth Circuit in Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir.2005): “in cases in which a motion to reopen is filed within the voluntary departure period and a stay of removal or voluntary departure is requested, the voluntary departure period is tolled during the period the BIA is considering *953the motion.” The Ninth Circuit panel in Azarte felt free to adopt this construction of the governing statutes because the BIA decision was not “a product of reasoned notiee-and-eomment rulemaking.” Id. at 1285. I cannot agree with this undeferen-tial interpretation of the governing statutes and regulations and therefore dissent from the adoption of the Azarte holding.
The voluntary departure regulations strictly limit the BIA’s authority to extend the voluntary departure period on account of a pending motion to reopen:
[T]he Board may reinstate voluntary departure in a removal proceeding that has been reopened ... 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 ... 60 days as set forth in [8 U.S.C. § 1129c(b)(2) ].
8 C.F.R. § 1240.26(f). This regulation clearly implies that no extension of voluntary departure may be granted unless the motion to reopen is granted, a reasonable construction of the governing statutes given the policy that motions to reopen are not favored. Here, Mr. Sidikhouya filed a motion to reopen the day before his voluntary departure period expired. He could not realistically expect the BIA to consider and grant this motion in one day. Moreover, once his voluntary departure period expired, the BIA was barred by statute from granting the adjustment-of-status relief that Mr. Sidikhouya sought to obtain by his motion to reopen. See 8 U.S.C. § 1229c(d) (an alien who fails to voluntarily depart within the period specified is ineligible for “any further relief’ under 8 U.S.C. § 1255). Thus, the BIA’s decision to deny the motion to reopen because the voluntary departure had expired finds strong support in the governing statutes and regulations.
However, there is an aspect of this problem that leads me to agree with the court’s remand to the BIA for further proceedings. Mr. Sidikhouya accompanied his motion to reopen with a motion to the BIA to stay the voluntary departure period. The BIA did not rule on this motion. The regulations do not address the question whether the BIA may toll or stay the voluntary departure period while it considers the merits of a motion to reopen. One answer might be no, based on 8 U.S.C. § 1129c(b)(2), which provides that “[pier-mission to depart voluntarily under this subsection shall not be valid for a period exceeding 60 days.” But the BIA appears not to construe this as an absolute prohibition. In this case, for example, the January 2004 BIA order affirming the IJ’s decision provided that Mr. Sidikhouya “is permitted to voluntarily depart from the United States ... within 30 days from the date of this order,” a period long after the sixty days granted by the IJ in September 2002. Thus, the BIA obviously believes it has authority to toll or stay the voluntary departure period during administrative appeals. I consider this a sensible rule, see Rife v. Ashcroft, 374 F.3d 606, 614-16 (8th Cir.2004), but I cannot find authority for it anywhere in the agency’s regulations.
If the BIA has the inherent power to toll or stay the voluntary departure period during the pendency of administrative appeals, does it have the same power during the pendency of motions to reopen? The regulations do not answer this question, the agency has not addressed it in this ease or to my knowledge any other case, and the courts should not attempt to resolve it without agency guidance. Thus, I would remand this case with directions to rule on Mr. Sidikhouya’s motion to the BIA for a stay of the voluntary departure period. If the motion is granted, presumably the BIA would address the merits of *954the motion to reopen. If it is denied, then the denial of the motion to reopen would presumably be reinstated, and we would have an opportunity to consider, with the benefit of the agency’s views as to its own procedural authority, whether denial of the motion to stay is subject to judicial review.