Bocova v. Gonzales

United States Court of Appeals
For the First Circuit

No. 04-2175

ARTUR BOCOVA,
Petitioner,

v.

ALBERTO GONZALES, ATTORNEY GENERAL,
Respondent.

PETITION FOR REVIEW OF A FINAL ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Howard, Circuit Judge.

Ilana Greenstein, with whom Harvey Kaplan, Maureen O'Sullivan,
Jeremiah Friedman, and Kaplan, O'Sullivan & Friedman, LLP were on
brief, for petitioner.
Beth Werlin for American Immigration Law Foundation, amicus
curiae.
John Andre, Senior Litigation Counsel, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
with whom Peter D. Keisler, Assistant Attorney General, and Donald
E. Keener, Deputy Director, Office of Immigration Litigation, were
on brief, for respondent.

June 24, 2005
 SELYA, Circuit Judge. In this case, the Board of

Immigration Appeals (BIA) denied the petitioner's alternative

application for asylum or withholding of removal, but granted a

time-limited privilege of voluntary departure (now seemingly

expired). The first, and easier, question is whether substantial

evidence in the record supports the BIA's decision on the merits.

The second, and more difficult, question concerns the extent of our

own authority to fashion a new period of voluntary departure,

reinstate a lapsed period, or suspend the running of an unexpired

period. This court has not spoken definitively to this multi-part

question since the passage of the Illegal Immigration Reform and

Immigrant Responsibility Act (IIRIRA).

On the first issue, we hold that the BIA's decision to

deny both asylum and withholding of removal is supported by

substantial evidence and, thus, the BIA's final order of removal

must stand. On the second issue, we hold that we lack the

authority either to fashion a new period of voluntary departure or

to reinstate an expired period of voluntary departure. We

nonetheless conclude that we possess the power, on a timely and

properly focused motion, to suspend the running of an unexpired

voluntary departure period. Because the petitioner's motion fails

to satisfy these requirements, we deny that relief as well.

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I. BACKGROUND

For simplicity's sake, we rehearse the facts as recounted

by the petitioner. We then map the travel of the case.

A. The Facts.

The petitioner, Artur Bocova, is an Albanian national.

In 1992, he became an active member of the Albanian Democratic

Party (ADP). He attended numerous meetings and rallies and

participated in an array of protests. During one such

demonstration, which occurred on August 28, 1998, the Albanian

police arrested the petitioner and several fellow protesters. He

was held without charges for two days, interrogated, beaten, and

threatened with death if he did not renounce the ADP. Following

his release, he remained active in the party of his choosing.

More than two years passed without incident. Then, on

October 14, 2000, the police again arrested the petitioner, this

time at a boisterous ADP rally. They apparently recognized him

because they remarked that he had not learned his lesson as a

result of his earlier detention. The police beat him (this time

with chains attached to plastic pipes) and again threatened to kill

him if he did not sever his ties to the ADP. The beating caused

the petitioner to lose consciousness and prompted the police to

take him to a hospital. He was unable to work for two days.

The petitioner remained in Albania and continued to

participate overtly in ADP activities. He consulted a lawyer about

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the efficacy of filing charges against the police officers who had

beaten him. The lawyer discouraged pursuing that course because

doing so might incite the police to further acts of violence.

In December of 2000, the petitioner, using a fraudulent

Greek passport, left Albania for Greece. He resided in Athens with

his uncle for approximately four months. In early 2001, the

Albanian police came looking for him at his parents' home; when

informed that he was not there, a policeman reportedly replied,

"tell him not to come back here any more."

The petitioner continued to worry about his safety

because of Greece's proximity to Albania. He therefore decided to

leave Greece with nine other aliens, using ersatz documentation.

The group traveled through the Netherlands, Venezuela, Ecuador, and

Mexico; on April 24, 2001, they sneaked across the border, near

Tijuana, with the help of smugglers. The petitioner then wended

his way to Boston.

B. Procedural History.

The petitioner applied for asylum on April 13, 2002.

Shortly thereafter, the government initiated removal proceedings

against him, charging that he was present in the United States

without legal sanction. See 8 U.S.C. §§ 1182(a)(6)(A)(i),

1182(a)(7)(A)(i). At a preliminary hearing before an immigration

judge (IJ), the petitioner conceded removability and cross-applied

for asylum or withholding of removal. The IJ convened an

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evidentiary hearing on January 10, 2003. After both sides had

rested, she denied the petitioner's requests for relief and ordered

his removal. Concomitantly, she granted him a sixty-day period

within which to depart voluntarily from the United States.

The petitioner appealed. The BIA affirmed the IJ's

decision on June 16, 2004, and granted the petitioner a fresh

thirty-day voluntary departure period. Due to a technical snafu,

the BIA reissued its decision on August 3, 2004; thus, the

voluntary departure period began to run on that date.

On September 1, 2004 (one day before his voluntary

departure period was due to end), the petitioner filed a petition

for judicial review of the BIA's decision and a motion for a stay

of removal. The government notified this court of its election not

to oppose a stay of removal. Consequently, we issued the stay on

October 5, 2004.

On November 19, 2004, the petitioner moved to stay the

running of his then-expired voluntary departure period. The

government objected. We granted a provisional stay pendente lite,

deferring a final disposition of the motion to the merits panel.

We also directed the parties to address in their briefs whether the

courts of appeals possess the authority to fashion, reinstate, or

stay periods of voluntary departure and, if so, under what

conditions. The parties faithfully complied with this directive

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and the American Immigration Law Foundation filed a helpful friend-

of-the-court brief.

II. THE MERITS

We turn first to the petition for judicial review. We

focus on the petitioner's asylum claim because a claim for

withholding of removal "places a more stringent burden of proof on

an alien than does a counterpart claim for asylum." Rodriguez-

Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005) (citing

Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004)). Thus, if

the petitioner's asylum claim fails on the merits, his counterpart

claim for withholding of removal fails as well. See id.

In evaluating the BIA's denial of asylum, our review is

aimed at determining whether the agency's decision is supported by

substantial evidence in the record. Da Silva v. Ashcroft, 394 F.3d

1, 4 (1st Cir. 2005). Under that regime, we must accept the BIA's

findings of fact, including credibility determinations, as long as

they are "supported by reasonable, substantial, and probative

evidence on the record considered as a whole." INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992). The substantial evidence

standard is not petitioner-friendly; under it, the BIA's fact-based

determination of an alien's entitlement to asylum must be upheld

unless "any reasonable adjudicator would be compelled to conclude

to the contrary." 8 U.S.C. § 1252(b)(4)(B). In other words,

vacatur requires that the evidence "point[] unerringly in the

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opposite direction." Laurent v. Ashcroft, 359 F.3d 59, 64 (1st

Cir. 2004).

Rulings of law engender de novo review. Da Silva, 394

F.3d at 5. Even in that realm, however, courts must defer to the

BIA's reasonable interpretations of the statutes and regulations

relating directly to immigration matters. See INS v. Aguirre-

Aguirre, 526 U.S. 415, 425 (1999); Lattab v. Ashcroft, 384 F.3d 8,

17 (1st Cir. 2004).

To qualify for asylum, an applicant bears the burden of

establishing that he is a "refugee" within the meaning of the

Immigration and Nationality Act (INA). See 8 U.S.C. § 1158(b)(1);

see also Makhoul, 387 F.3d at 79. An applicant can carry this

burden either by proving past persecution on account of race,

religion, nationality, membership in a particular social group, or

political opinion, or by demonstrating a well-founded fear of

future persecution on account of one of these five grounds. See 8

U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(b); see also Makhoul,

387 F.3d at 79. An alien must satisfy both a subjective and an

objective test in order to prove a well-founded fear of future

persecution. "That is to say, the asylum applicant's fear must be

both genuine and objectively reasonable." Aguilar-Solis v. INS,

168 F.3d 565, 572 (1st Cir. 1999).

In this instance, the IJ found the petitioner's testimony

credible and the BIA accepted that finding. We therefore proceed

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on the assumption that the Albanian police twice arrested, beat,

and threatened the petitioner and that this mistreatment was on

account of his political opinion (i.e., his membership in the ADP

— a party that was then out of favor). Accordingly, the question

reduces to whether, given those facts, the BIA was compelled, as a

matter of law, to find that the petitioner had established either

past persecution or a well-founded fear of future persecution.

Persecution is a protean word, capable of many meanings.

Cf. United States v. Romain, 393 F.3d 63, 74 (1st Cir. 2004)

(explaining that some "words are like chameleons" in that they may

"have different shades of meaning depending upon the

circumstances"). Because the word "persecution" is not defined by

statute, it is in the first instance the prerogative of the

Attorney General, acting through the BIA, to give content to it.

See Aguirre-Aguirre, 526 U.S. at 424. We are thus bound to accept

the BIA's view of what constitutes persecution unless that view

amounts to an unreasonable reading of the statute or inexplicably

departs from the BIA's earlier pronouncements. Davila-Bardales v.

INS, 27 F.3d 1, 5 (1st Cir. 1994).

For the most part, the BIA has eschewed the articulation

of rigid rules for determining when mistreatment sinks to the level

of persecution, preferring instead to treat the issue on an ad hoc,

case-by-case basis. See, e.g., In re L— K—, 23 I. & N. Dec. 677,

683 (BIA 2004); In re O— Z— & I— Z—, 22 I. & N. Dec. 23, 25-26 (BIA

-8-
1998). That is a legitimate praxis. See SEC v. Chenery Corp., 332

U.S. 194, 202-03 (1947) (holding that agencies may implement

statutes that they administer case-by-case). Indeed, given the

nearly infinite diversity of factual circumstances in which asylum

claims arise, it would be difficult to develop meaningful

generalities that could easily be applied to a broad spectrum of

cases. See Aguilar-Solis, 168 F.3d at 569-70.

That the BIA has chosen to take each case as it comes in

deciding whether an alien has demonstrated persecution does not

mean that we are left without any guidance. We have held that

mistreatment ordinarily must entail more than sporadic abuse in

order to constitute persecution. See Nelson v. INS, 232 F.3d 258,

263 (1st Cir. 2000) (explaining that "unpleasantness, harassment,

and even basic suffering" are not enough). By the same token,

mistreatment can constitute persecution even though it does not

embody a direct and unremitting threat to life or freedom. See

Aguilar-Solis, 168 F.3d at 569-70. An important factor in

determining where a specific case falls along this continuum is

whether the mistreatment can be said to be systematic rather than

reflective of a series of isolated incidents. See O— Z— & I— Z—,

22 I. & N. Dec. at 26. We consistently have upheld this gloss as

a legitimate reading of the INA. See, e.g., Rodriguez-Ramirez, 398

F.3d at 124; Nelson, 232 F.3d at 263-64.

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 Although we neither condone nor minimize the mistreatment

described by the petitioner, we do not feel free to second-guess

the BIA's determination that it fell short of establishing past

persecution. While any beating at the hands of the police is one

beating too many, the record here shows only two incidents, over an

eight-year span, occurring more than twenty-five months apart. The

first confrontation was relatively minor. Although the second was

more severe, there is little in the record to suggest that the

petitioner was systematically targeted for abuse on account of his

political beliefs.

We add, moreover, that on these facts, the BIA's

rejection of the petitioner's claim of past persecution is

consistent with other cases presenting comparable facts, in which

courts — including this court — have upheld denials of asylum.

See, e.g., Gishta v. Gonzales, 404 F.3d 972, 978-80 (6th Cir. 2005)

(finding supportable the BIA's determination that members of the

ADP who suffered sporadic beatings and jailings had not

demonstrated past persecution); Dandan v. Ashcroft, 339 F.3d 567,

573-74 (7th Cir. 2003) (upholding a finding of no persecution

despite a serious beating and a three-day detention); Guzman v.

INS, 327 F.3d 11, 15-16 (1st Cir. 2003) (affirming the BIA's

determination that a serious beating did not amount to

persecution). Although we, if writing on a pristine page, might

have decided the question differently, we are constrained by the

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standard of review: the evidence is not conclusive either way and,

thus, a reasonable adjudicator would not be compelled to reach a

particular conclusion. We therefore find that the BIA's

determination — that the petitioner was not subject to past

persecution — is sufficiently supported by the record. See 8

U.S.C. § 1252(b)(4)(B); see also Elias-Zacarias, 502 U.S. at 481;

Laurent, 359 F.3d at 64.

That leaves the likelihood of future persecution should

the petitioner be deported to Albania. As to this facet of the

asylum analysis, the petitioner's only evidence — apart from the

past indignities mentioned above — is his hearsay account of the

police officers' visit to his parents' home after he had left the

country. When the police were informed that the petitioner had

departed, they reportedly replied that his parents should "tell him

not to come back here." The BIA deemed this cryptic comment

insufficient to establish a well-founded fear of future persecution

and that conclusion is readily sustainable.

The short of it is that there are a multitude of possible

explanations for the officers' visit. And even if we were to

assume, without a scintilla of evidence, that the petitioner's

political beliefs sparked the visit — an inference that the BIA

declined to draw — that assumed fact would not compel a finding

that the visit gave rise to an objectively reasonable fear of

future persecution. See, e.g., Flores-Castro v. INS, No. 98-71136,

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2000 WL 1335524, at *1 (9th Cir. Sept. 14, 2000) (upholding a

finding that an alien had not established a reasonable fear of

future persecution based on a visit by the police to his mother's

house, in which the police had made no specific threats); Milosevic

v. INS, 18 F.3d 366, 371 (7th Cir. 1994) (agreeing that petitioner

had not established a well-founded fear of future persecution based

on a visit to his wife's house in which the police asked for the

petitioner); cf. Makhoul, 387 F.3d at 81-82 (refusing to set aside

the BIA's conclusion that the petitioner had failed to show a

reasonable fear of future prosecution based on the arrest of one of

his compatriots). To cinch matters, the petitioner has given us no

reason to question the BIA's determination that, in Albania today,

there is no pattern of persecution of similarly situated persons,

such that the petitioner reasonably could expect to be persecuted

upon his return.

Simply put, there is no principled basis on which we may

set aside the BIA's conclusion that the petitioner failed to

establish either past persecution or a well-founded fear of future

persecution. This holding also dooms the petitioner's counterpart

claim for withholding of removal. See Rodriguez-Ramirez, 398 F.3d

at 123. Accordingly, we must deny the petition for review.

III. VOLUNTARY DEPARTURE

Having concluded that the removal order must be

sustained, we now address the matter of voluntary departure.

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 We start with first principles. Voluntary departure is

a discretionary form of relief that allows an alien who is subject

to a deportation order a period of time in which to leave the

country of his own volition. If adhered to, voluntary departure

produces a win-win situation. It benefits the government by

expediting departures and eliminating the costs associated with

deportation. See Rife v. Ashcroft, 374 F.3d 606, 614 (8th Cir.

2004). It benefits the alien because it allows him to choose the

destination to which he will travel and to avoid the penalties

attendant to removal (thereby easing a possible return to the

United States).1 See id. Voluntary departure, however, is not a

one-way street: its benefits come with attendant responsibilities.

An alien who fails to leave the country within the allotted

departure period faces sanctions, including forfeiture of the

required bond, a fine of up to $5,000, and a ten-year period of

ineligibility for certain forms of relief under the INA. See 8

U.S.C. § 1229c(a)(3), (b)(3), (d); see also Lopez-Chavez v.

Ashcroft, 383 F.3d 650, 651 (7th Cir. 2004).

In this case, the IJ and the BIA each granted the

petitioner a period of voluntary departure. The petitioner

1
An alien who has departed the United States while under an
outstanding order of removal is ineligible for readmission to the
United States for a period of either five or ten years, depending
on the circumstances, without the Attorney General's consent. 8
U.S.C. § 1182(a)(9)(A). An alien who departs pursuant to a grant
of voluntary departure avoids this disability. Lopez-Chavez v.
Ashcroft, 383 F.3d 650, 651 (7th Cir. 2004).

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maintains that we may reinstate the last of these voluntary

departure periods in toto, so that he will have thirty days from

the date of our mandate within which to leave the United States on

his own initiative. Alternatively, he argues that we have

authority to stay the voluntary departure period previously granted

by the BIA, so that it does not run during our consideration of his

petition for review and resumes only upon issuance of our mandate.

Before the effective date of the IIRIRA, this court's

practice was to reinstate voluntary departure privileges in

appropriate cases. See Umanzor-Alvarado v. INS, 896 F.2d 14, 16

(1st Cir. 1990) (Breyer, J.). The IIRIRA materially changed the

ground rules for voluntary departure by stripping the courts of

appeals of jurisdiction to review BIA decisions as to whether to

grant voluntary departure and, if so, for how long. See 8 U.S.C.

§§ 1229c(f), 1252(a)(2)(B)(i). We have not heretofore determined

the viability of our authority to reinstate a period of voluntary

departure in a post-IIRIRA world. We do so today.

Two of our post-IIRIRA opinions (both involving the same

alien) furnish useful background. In Khalil v. Ashcroft, 337 F.3d

50 (1st Cir. 2003) (Khalil I), we followed our historic practice

and reinstated the petitioner's voluntary departure period without

considering the IIRIRA's effect on our authority to do so.2 Id. at

2
So too Velasquez v. Ashcroft, 342 F.3d 55, 59 (1st Cir.
2003), in which a panel of this court reinstated a voluntary
departure period in reliance on Khalil I, but without directly

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56. Khalil chose not to quit while he was ahead and overstayed his

freshly minted voluntary departure period. We were then faced with

the question, inter alia, of whether our reinstatement of the

voluntary departure period functioned retroactively to forgive his

disregard of the voluntary departure deadline originally set by the

BIA. We concluded that the reinstatement did not so operate, but

declined to address the government's argument that the

reinstatement itself was a nullity because the court had no

authority to grant such relief. Khalil v. Ashcroft, 370 F.3d 176,

177, 179-80 (1st Cir. 2004) (Khalil II). We nonetheless

acknowledged the issue as open to future consideration and advised

the immigration bar to take pains to protect whatever rights aliens

might have to preserve voluntary departure privileges. See id. at

182.

The instant case brings us face to face with the question

alluded to, but left unanswered, in Khalil II. We must explore

whether we retain the authority, after the effective date of the

IIRIRA, to reinstate or suspend a previously granted voluntary

departure period.3

examining either the impact of the IIRIRA or the court's continuing
authority to reinstate voluntary departure orders.
3
Congress enacted the IIRIRA on September 30, 1996, to take
effect on April 1, 1997. See Illegal Immigration Reform and
Immigrant Responsibility Act, Pub. L. No. 104-208, §309, 110 Stat.
3009-546, 3009-625 (1996).

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 The matter of reinstatement is open and shut. All of the

courts of appeals to resolve the issue thus far have concluded that

they no longer may reinstate expired periods of voluntary

departure. See Mullai v. Ashcroft, 385 F.3d 635, 639-40 (6th Cir.

2004); Rife, 374 F.3d at 616; Ngarurih v. Ashcroft, 371 F.3d 182,

192-93 (4th Cir. 2004); Reynoso-Lopez v. Ashcroft, 369 F.3d 275,

280-81 (3d Cir. 2004); Sviridov v. Ashcroft, 358 F.3d 722, 731

(10th Cir. 2004); Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1174

(9th Cir. 2003). We agree with these decisions and hold that we no

longer have the authority, at the conclusion of judicial review,

either to fashion a new voluntary departure period or to reinstate

an expired one.

Our reasoning is straightforward. The IIRIRA worked a

sea change in the federal courts' authority over voluntary

departure orders by withdrawing from the courts jurisdiction to

review grants or denials of voluntary departure. See 8 U.S.C. §§

1229c(f), 1252(a)(2)(B)(i). It also relegated to the Attorney

General the sole authority to determine the length of a voluntary

departure period, including any extensions thereof. See id. §

1252(a)(2)(B)(i). Reinstating an expired voluntary departure

period is functionally equivalent to fashioning a new voluntary

departure period; doing so would require the court to dictate both

the length of the period and the time when it would begin to run

(thus effectively overriding the Attorney General's decision). See

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Mullai, 385 F.3d at 640; Zazueta-Carrillo, 322 F.3d at 1172-73.

That would be an impermissible circumvention of Congress's will.

Consequently, we disclaim the existence of any such authority and,

to that extent, we expressly abrogate our earlier decisions in

Umanzor-Alvarado, Khalil I, Velasquez, and similar cases.

There remains the petitioner's alternative argument that

we may stay a voluntary departure period previously granted by the

BIA pending judicial review of a removal order. On this issue, our

sister circuits are divided. Four of them have held that the

courts of appeals have the power to toll the running of a voluntary

departure period previously granted by the BIA. See Lopez-Chavez,

383 F.3d at 654; Rife, 374 F.3d at 616; Nwakanma v. Ashcroft, 352

F.3d 325, 327 (6th Cir. 2003); El Himri v. Ashcroft, 344 F.3d 1261,

1262 (9th Cir. 2003). The Fourth Circuit has concluded that the

courts of appeals lack any such authority. Ngarurih, 371 F.3d at

194. For the reasons that follow, we subscribe to the majority

view and hold that, post-IIRIRA, the courts of appeals retain the

power to suspend a period of voluntary departure (and, thus, to

toll the running of the period).

Our analysis derives principally from the statutory

scheme. What we view to be the controlling statute, 8 U.S.C. §

1252, makes judicial review of all final orders of removal subject

to the provisions of the Administrative Orders Review Act (better

known as the Hobbs Act), 28 U.S.C. §§ 2341-2351. A key provision

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of the Hobbs Act declares that "the court of appeals in its

discretion may restrain or suspend, in whole or in part, the

operation of the order pending the final hearing and determination

of the petition." Id. § 2349(b). We regard this language as

authorizing courts of appeals, in immigration cases, to suspend

(that is, to stay) the running of unexpired voluntary departure

periods. Accord Rife, 374 F.3d at 615-16; El Himri, 344 F.3d at

1262 (adopting concurring opinion of Berzon, J., in Zazueta-

Carrillo, 322 F.3d at 1177).

We do not find any language in the IIRIRA itself that

limits our authority to suspend the running of an unexpired

voluntary departure period. Although the IIRIRA eliminated our

jurisdiction to review the BIA's decisions granting or denying

voluntary departure, see 8 U.S.C. §§ 1229c(f), 1252(a)(2)(B)(i),

there is a meaningful distinction between reviewing a grant or

denial of voluntary departure (which entails testing the order's

substantive validity) and suspending the running of a voluntary

departure period granted by the agency (which entails staying the

operation of the order pending judicial review of the validity of

the underlying removal decision). See Lopez-Chavez, 383 F.3d at

652; Rife, 374 F.3d at 615; El Himri, 344 F.3d at 1262.

Given this distinction, we think that if it were

Congress's intention to divest the courts of appeals of authority

to suspend voluntary departure periods, it would have expressed

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that intention in a much more direct and pointed fashion.

Statutory ambiguities ordinarily are to be construed in favor of

the alien in the immigration context. See INS v. St. Cyr, 533 U.S.

289, 320 (2001); INS v. Errico, 385 U.S. 214, 225 (1966); Fong Haw

Tan v. Phelan, 333 U.S. 6, 10 (1948). Having in mind both that

maxim and Congress's conspicuous lack of specificity here, we

decline the government's invitation to attempt to tease a

jurisdiction-stripping meaning out of the oblique language

contained in 8 U.S.C. § 1229c(f) and § 1252(a)(2)(B)(1). See

Miller v. French, 530 U.S. 327, 340-41 (2000) (warning that courts

should be chary about interpreting statutes to restrict the scope

of traditional judicial review absent the "clearest command" or an

"inescapable inference to the contrary" (citations and internal

quotation marks omitted)); United States v. Green, 407 F.3d 434,

442 (1st Cir. 2005) (explaining that courts interpreting statutes

ordinarily should eschew "linguistic contortion[s] to reach a

result that Congress could have accomplished much more simply and

straightforwardly"). We conclude, therefore, that the statutory

provision relied on by the government cannot override the clear

grant of authority contained in 28 U.S.C. § 2349(b).

The government has one last arrow in its quiver. It

suggests that because 8 U.S.C. § 1252 limits appellate jurisdiction

to review of final orders of removal and because an order allowing

a period for voluntary departure is not a final order of removal,

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we may not suspend the running of a voluntary departure period.

This is sheer persiflage. As a formal matter, orders of removal

and grants of voluntary departure are entered as alternate orders

that comprise different facets of a single ukase. 8 C.F.R. §

1240.26(d). In other words, they are complementary; the BIA may

grant a period of voluntary departure, but if the alien overstays

the allotted period, that part of the order effectively

disintegrates and the removal component takes effect. Taken to its

logical extreme, the government's argument would require us to find

that we have no jurisdiction to entertain a petition for review

unless and until the petitioner has overstayed his voluntary

departure deadline because only then is the removal order actually

entered against him. We simply do not believe that Congress

contemplated such an odd result.

To sum up, we conclude that we have the authority to

suspend the running of an unexpired voluntary departure period

while a petition for judicial review is pending. That conclusion,

however, raises several related questions as to when and how a

motion for a stay must be filed, whether the movant must exhaust

administrative remedies before seeking a stay, and what standards

should obtain in determining whether to grant a stay.

The courts that have directly addressed the issue have

all determined that in order to qualify for a stay, the alien must

make a timeous motion, that is, he must so move before the

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voluntary departure period expires. See, e.g., Alimi v. Ashcroft,

391 F.3d 888, 892 (7th Cir. 2004); Mullai, 385 F.3d at 640; Rife,

374 F.3d at 616. But cf. Desta v. Ashcroft, 365 F.3d 741, 745-46

(9th Cir. 2004) (leaving the question open). Beyond that baseline,

however, the cases are in some disarray. The Eighth and Ninth

Circuits treat a motion to stay removal as implicitly encompassing

a request for a stay of voluntary departure. See Rife, 374 F.3d at

616; Desta, 365 F.3d at 745-46. The Seventh Circuit has rejected

that view and requires a particularized request for a stay of

voluntary departure. See Alimi, 391 F.3d at 892-93.

We agree that an alien must file a motion for a stay

before the expiration of the period of voluntary departure allotted

by the BIA. Once the voluntary departure period has run its

course, a court of appeals lacks the authority to fashion a new one

or to reinstate or extend the old one. See text supra; see also

Khalil II, 370 F.3d at 180. That holding compels the further

conclusion that an expired voluntary departure period cannot be

resuscitated retroactively. Khalil II, 370 F.3d at 177. After the

period has elapsed, there is nothing to suspend and any court order

purporting to toll an expired period of voluntary departure would

have the effect of creating a new voluntary departure period.

Under the IIRIRA, that is impermissible. See Mullai, 385 F.3d at

640; Lopez-Chavez, 383 F.3d at 652-53.

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 We further hold that an alien must ask explicitly for a

stay of voluntary departure; a motion that prays only for a stay of

removal will not suffice. Several salient considerations counsel

in favor of requiring a particularized request for a stay of

voluntary departure. Chief among them is the need for both the

government and the court to understand exactly what relief the

movant is seeking. See Alimi, 391 F.3d at 892-93. The government

may (and often does) elect not to oppose a motion for a stay of

removal (indeed, it followed that course here). It may, however,

choose to oppose a suspension of the voluntary departure period.

If every request for a stay of removal were treated as

incorporating sub silento a request for a stay of voluntary

departure, the government might be far less willing to acquiesce.

Requiring the motion to specify what redress the alien seeks allows

the government to take an equally explicit position.

Relatedly, we note that stays usually require expedited

judicial consideration. The need for celerity makes it imperative

that the court know the parties' positions up front. Even though

the same basic legal test applies to motions for stays of removal

and motions for stays of voluntary departure, see text infra, that

test may play out differently as to each type of relief. Given

this possibility, requiring the alien to be precise about the

relief requested will materially assist the court in conducting its

review.

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 The next problem relates to the need, if any, for

exhaustion of administrative remedies. The Seventh Circuit — and

only the Seventh Circuit — requires an alien to exhaust

administrative remedies (that is, to request an extension of the

voluntary departure period from the United States Citizenship and

Immigration Services District Director) before seeking a judicial

stay of voluntary departure. Alimi, 391 F.3d at 893. We reject

this gloss.

In imposing an exhaustion requirement, the Seventh

Circuit reasoned that, generally speaking, the law favors

exhaustion of available administrative remedies as a condition

precedent to seeking judicial assistance and that a voluntary

departure order does not require the alien to depart until a future

date (thus leaving time to pursue administrative remediation). See

id. at 893. We find this reasoning unpersuasive. A suspension of

a voluntary departure period merely tolls the running of that

period; it does not extend it. Because neither the BIA nor

Citizenship and Immigration Services (CIS) appears to have the

authority to toll a voluntary departure period pending judicial

review,4 we doubt whether there is any suitable administrative

remedy for the alien to exhaust.

4
We are aware of no case in which either the BIA or CIS has
granted such a suspension, and the government has brought none to
our attention.

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 Even if such a remedy exists, we fear that, in the

majority of cases, requiring an alien to seek an administrative

extension would be an exercise in futility. By law, the BIA may

fashion a voluntary departure period of no more than sixty days.

See 8 U.S.C. § 1229c(b)(2). Certain high-level CIS officials are

authorized to extend that period, but they too are bound by the

sixty-day maximum; they may only extend the voluntary departure

period if the BIA granted less than the maximum voluntary departure

time in the first instance. See id. § 1229c(b)(2); 8 C.F.R. §

1240.26(f). A sixty-day interval simply is not enough time, in the

ordinary course of events, to permit the docketing, briefing,

argument, and decision of a petition for judicial review.

The flip side of the coin reveals an equally unpromising

reality. A motion to suspend the running of the voluntary

departure period must be made during the currency of that period.

See text supra. Given this short shelf life, requiring the alien

first to request some evanescent administrative remedy, which the

agency may act upon at its leisure, might well sound the death

knell for the possibility of a judicial stay. That is too high a

price to demand that the alien pay. Cf. Mackey v. Bd. of Educ.,

386 F.3d 158, 162 n.3 (2d Cir. 2004) (excusing a litigant's failure

to exhaust administrative remedies when the agency's delay could

have resulted in the unavailability of the relief sought).

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 For the foregoing reasons, we conclude that an alien

seeking a stay of a previously granted period of voluntary

departure must apply for the stay before the expiration of that

period and that the motion must explicitly request a stay of the

voluntary departure period. The movant need not, however, first

apply for an administrative extension of the voluntary departure

period.

We turn now to the substantive standards for evaluating

a motion to suspend the running of a previously granted voluntary

departure period. Mindful of the weight of authority elsewhere,

see, e.g., Rife, 374 F.3d at 616; Desta, 365 F.3d at 748, we

conclude that we should subject such a motion to scrutiny under the

same legal standards used to assess a motion for stay of removal.

Those criteria are spelled out in our opinion in Arevalo v.

Ashcroft, 344 F.3d 1 (1st Cir. 2003). There, we held that requests

for stays of removal should be evaluated under the four-part test

applicable to applications for preliminary injunctive relief. Id.

at 9. That test requires the alien to show "(1) that she is likely

to succeed on the merits of her underlying objection; (2) that she

will suffer irreparable harm absent the stay; (3) that this harm

outweighs any potential harm fairly attributable to the granting of

the stay; and (4) that the stay would not disserve the public

interest." Id. at 7.

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 We add a coda. Although we use the same four-part test

for adjudicating motions for stays of removal and motions to

suspend the running of voluntary departure periods, the

considerations to which the test applies may not be fully

congruent. Thus, there may be cases in which an alien is entitled

to a stay of removal but not a stay of voluntary departure. See

Alimi, 391 F.3d at 892-93 (observing that a stay of voluntary

departure may not always be appropriate in cases in which a stay of

removal is appropriate); Rife, 374 F.3d at 616 (similar).

At this point, we return to the case at hand. Here, the

petitioner did not move to stay the running of the voluntary

departure period until well after that period expired.

Consequently, we deny his motion.5 Our earlier order staying the

order of removal will remain in effect until mandate issues. See

Mariscal-Sandoval v. Ashcroft, 370 F.3d 851, 856 (9th Cir. 2004).

During that interval, the petitioner remains free to depart the

United States on his own volition and thereby to avoid some (but

not all) of the untoward consequences associated with forced

removal. See Khalil II, 370 F.3d at 180.

5
If this result seems harsh, we note that we released our
opinion in Khalil II on June 3, 2004, well before the BIA decided
the petitioner's case. The petitioner plainly was on notice that
the issue was in play and easily could have taken precautionary
steps to protect his interests.

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IV. CONCLUSION

We need go no further. To recapitulate, we deny the

petition for review. We likewise deny the petitioner's hydra-

headed request that we fashion a new voluntary departure period,

retroactively reinstate his expired voluntary departure period, or

treat his motion for a stay of removal as a motion to suspend the

march of the voluntary departure period. While we hold that, in

appropriate cases, we possess the authority to suspend the running

of an unexpired period of voluntary departure, this is not an

appropriate case; an alien must explicitly request that relief

before the expiration of the voluntary departure period,6 and the

petitioner has not satisfied that requirement.

The petition for review and the motion to reinstate or

stay a voluntary departure period are denied. The stay of removal

and the provisional order anent voluntary departure are revoked.

6
For the sake of clarity, we add that an alien who desires
both a stay of removal and a stay of the running of a previously
granted voluntary departure period may incorporate both requests in
a single motion. The motion, however, must be explicit as to the
forms of relief requested and must be timely as to each request.

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