David Wachira Ngarurih v.  JOHN D. ASHCROFT, Attorney General of the United States

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 DAVID WACHIRA NGARURIH,
Petitioner,
v. No. 03-1144 
JOHN D. ASHCROFT, Attorney
General of the United States,
Respondent. 
On Petition for Review of an Order of
the Board of Immigration Appeals.
(A78-351-140)
Argued: January 20, 2004
Decided: June 10, 2004
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Petition denied by published opinion. Judge Shedd wrote the majority
opinion, in which Judge Wilkinson joined. Judge Gregory wrote an
opinion concurring in part and dissenting in part.
COUNSEL
ARGUED: Philip Gordon Schrag, Center for Applied Legal Studies,
GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C.,
for Petitioner. Deborah Nirmala Misir, Trial Attorney, Civil Division,
Office of Immigration Litigation, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Peter D. Keisler, Assistant Attorney General, Papu Sandhu,

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Senior Litigation Counsel, Civil Division, Office of Immigration Liti-
gation, UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Respondent.
OPINION
SHEDD, Circuit Judge:
The Board of Immigration Appeals ("BIA") affirmed an order
denying David Wachira Ngarurih’s request for asylum but granting
voluntary departure. Within the time permitted for appeal and shortly
before the period for voluntary departure expired, Ngarurih filed this
petition for review. Applying the narrow standards of review pre-
scribed by Congress in the immigration statute, we conclude that the
BIA’s denial of asylum is neither manifestly contrary to law nor an
abuse of discretion. We further conclude that the statute does not per-
mit a court of appeals to alter the period allowed by the BIA for vol-
untary departure, either by reinstating or staying the departure period.
Accordingly, the petition for review is denied.
I.
Ngarurih is a native and citizen of Kenya who entered the United
States in May 1995 on a nonimmigrant student visa. Ngarurih filed
an application for asylum in May 2000, alleging that he had been per-
secuted by the Kenyan government due to his criticisms of President
Daniel Arap Moi and his government’s tea farming policies.
Ngarurih began farming tea on a portion of his father’s land in the
early 1990s. The Kenyan government owned the tea plants and
licensed the right to cultivate them. Under the license, tea farmers
were required to maintain their plantations in accordance with instruc-
tions issued by the Kenya Tea Development Authority ("KTDA");
farmers could neither increase nor decrease the number of tea plants
they cultivated without KTDA approval. Failure to comply with the
conditions of the license could result in a fine, imprisonment, or both.
Licensed farmers were required to sell their tea to the KTDA,
which marketed the tea internationally. Although the KTDA sold tea
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on the international market for 40 shillings per kilogram, it paid tea
farmers only 3 shillings per kilogram. This payment typically was
inadequate to cover the costs of production, so that tea farmers were
almost always in debt.
In 1992, Ngarurih and some friends publicly protested the KTDA’s
policies and announced that they would no longer sell their tea to the
KTDA. Soon other farmers began discussing a widespread boycott of
the KTDA. Ngarurih then organized a march to the local KTDA tea
processing factory to demand an accounting for the excess profits that
had been withheld from farmers. As a result of the boycott that
Ngarurih organized, tea production in Kenya’s Central Province
slowed dramatically.1
On July 17, 1992, Ngarurih organized a march to take the farmers’
protest to local government officials in the Central Province. Some
thirty thousand people joined this march. Ngarurih spoke to the
crowd, denouncing the KTDA’s policies and the Moi government’s
failure to address the needs of poor farmers. The district commis-
sioner heard the farmers’ protests and asked that a committee present
him written demands. Among the farmers’ demands were that the dis-
trict tea committee be dissolved, that certain licenses and taxes be
eliminated, and that the KTDA decentralize management of factories
and increase monthly payments to farmers.
A few days after the July 17 march, security officers escorted
Ngarurih to the home of the district commissioner. According to
Ngarurih, the district commissioner offered him a bribe to call off the
boycott of the KTDA. Ngarurih refused the offer. Shortly after this
incident, President Moi issued a statement warning "those inciting the
farmers" to end the boycott or face "dire consequences." Concerned
for his safety, Ngarurih went into hiding. After hearing that other tea
farmers were being arrested, Ngarurih surrendered to district authori-
ties in early August 1992.
1Kenya is divided into seven provinces, each of which is further
divided into districts comprised of smaller villages. The Central Province
is located just north of Nairobi.
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Ngarurih testified that three officers took him from his cell at the
local police station, handcuffed and blindfolded him, and drove him
to a wooded area, where they demanded that he name the other lead-
ers of the boycott. Under threat of execution, Ngarurih refused to
identify the other leaders. The officers then took Ngarurih to a prison,
where Ngarurih was stripped of his clothes and placed in a dark
cement cell. The cell had no light, no windows, and no toilet. For one
week, prison officials flooded the cell with cold water at irregular
intervals. The water level rose and fell, often rising to the level of
Ngarurih’s chest. Ngarurih could not eat or sleep, nor was he allowed
contact with other people. During this period, Ngarurih experienced
hallucinations in which he saw himself separate from his own body,
floating in another part of the cell. Prison officials moved Ngarurih
into a dry solitary confinement cell, where he remained for several
months.2
After being relocated to the jail in his home district, Ngarurih was
tried on a charge of treason. The local magistrate dismissed the charge
for lack of evidence and ordered Ngarurih released. Local authorities
immediately charged Ngarurih with breach of the peace. The magis-
trate offered to release Ngarurih if he would post a bond of one mil-
lion shillings and agree to refrain from political activity for one year.
Under the magistrate’s conditions, Ngarurih could not meet with more
than three Kenyans at a time or leave his home district without per-
mission. Ngarurih would have to report to local police officials every
other week. Ngarurih agreed to these conditions, and other tea farmers
raised the money (pledging their land titles as security) to satisfy the
bond. Thus, after about eight months of detention, Ngarurih was
released from custody in early April 1993.
Rather than face another confrontation with the government,
Ngarurih decided to leave Kenya. With the help of three Peace Corps
volunteers in his district, Ngarurih obtained a student visa to enter the
United States in May 1995. Ngarurih attended St. Gregory’s College
in Oklahoma, where he played basketball and earned an associate’s
2It is unclear how long Ngarurih remained at the prison. In his original
I-589 form, Ngarurih stated that he was kept in solitary confinement at
the prison for two months. In a later affidavit, he stated that he had come
to believe that he spent six months there.
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degree in business. Ngarurih later earned a degree in international
business management from the University of San Francisco.
Ngarurih returned to Kenya in June 1997 after learning that his
younger brother Njoka — whom Ngarurih had reared from childhood
— had been jailed. Njoka had pled guilty to two counts of defiling
a girl under the age of fourteen and sentenced to eight years in prison
with hard labor and "six strokes of the cane" for each count. Once
Ngarurih arrived in his village, he wrote to the trial court to obtain
Njoka’s file; the court granted Ngarurih’s request and sent him the
records. Ngarurih hired an attorney to challenge Njoka’s conviction,
and he traveled to other villages to investigate the facts of the case.
Ngarurih’s efforts were ultimately successful: His brother’s convic-
tion was reversed and his case remanded for a new trial. Ngarurih per-
sonally posted a bond to secure Njoka’s release from prison. Several
days after Njoka’s release, Ngarurih returned to the United States in
August 1997.
Ngarurih’s student visa was set to expire in 2000. Not wanting to
return to Kenya, Ngarurih filed an initial application for asylum and
withholding of removal based on past persecution by the Moi govern-
ment. The Immigration and Naturalization Service ("INS") com-
menced removal proceedings.3 Ngarurih conceded that he was
removable and applied for asylum, withholding of removal, and pro-
tection under the Convention Against Torture. Ngarurih asserted that
he should be deemed a refugee based on his past persecution. In addi-
tion, Ngarurih asserted that he had a well-founded fear of future per-
secution because (1) President Moi remained in power, (2) Kenyan
authorities continued to employ torture tactics, and (3) Ngarurih
would likely come to these authorities’ attention as an outspoken
political opponent.
3On March 1, 2003, the immigration service functions of the former
Immigration and Naturalization Service were transferred to the Bureau
of U.S. Citizenship and Immigration Services within the Department of
Homeland Security. For clarity’s sake, and because these proceedings
occurred before March 2003, we will refer to the INS rather than its suc-
cessor entity.
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The Immigration Judge ("IJ") found that Ngarurih had been subject
to past persecution in Kenya, but she denied the request for asylum
because Ngarurih’s two-month return to Kenya in 1997 demonstrated
that he was willing to return to his native country and that he could
be involved in public matters — such as a criminal appeal — without
reprisal by the Kenyan government. Although the IJ denied
Ngarurih’s claims for asylum and withholding of removal, she
granted voluntary departure, giving Ngarurih thirty days to leave the
United States at his own expense and without further government
action. Ngarurih appealed the IJ’s order to the BIA, which affirmed
the IJ’s disposition of Ngarurih’s claims.
The BIA concluded that Ngarurih’s return to Kenya in 1997 consti-
tuted a "fundamental change in circumstances [that] diminishe[d] his
claim" that he feared persecution in Kenya.4 Likewise, the BIA con-
cluded that Ngarurih’s return to Kenya diminished his claim that he
was entitled to asylum based upon the severity of his past persecution.
Thus, the BIA affirmed the IJ’s resolution of Ngarurih’s asylum claim
and granted Ngarurih permission to depart the United States voluntar-
ily. According to the BIA’s order, Ngarurih had thirty days from the
date of entry of the order (or any extension granted by the district
director) to depart the United States. The order further provided that
Ngarurih’s failure to depart within that 30-day period would result in
his being removed, fined, and ineligible from certain forms of relief
for a period of ten years. Shortly before that voluntary departure
period expired, Ngarurih filed this petition for review.
II.
The Immigration and Nationality Act authorizes the Attorney Gen-
eral, in his discretion, to confer asylum on any refugee. 8 U.S.C.
§ 1158(b)(1). A "refugee" is any person "who is unable or unwilling
to return to, and is unable or unwilling to avail himself or herself of
the protection of, [the home] country because of persecution or a
well-founded fear of persecution on account of race, religion, nation-
4The BIA noted that Daniel Arap Moi had been replaced by Mwai
Kibaki, who was elected President in December 2002. The BIA did not
rely on this fact, however, in concluding that Ngarurih could not demon-
strate a well-founded fear of persecution.
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ality, membership in a particular social group, or political opinion."
8 U.S.C. § 1101(a)(42)(A). An applicant for asylum may qualify as
a refugee either because he suffered past persecution or because he
has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b).
Under either standard, the applicant bears the burden of demonstrat-
ing eligibility for asylum. 8 C.F.R. § 208.13(a); Gonahasa v. INS, 181
F.3d 538, 541 (4th Cir. 1999).
An applicant "shall be found to be a refugee on the basis of past
persecution if the applicant can establish that he or she has suffered
persecution in the past in the applicant’s country of nationality . . . on
account of race, religion, nationality, membership in a particular
social group, or political opinion, and is unable or unwilling to return
to, or avail himself or herself of the protection of, that country owing
to such persecution." 8 C.F.R. § 208.13(b)(1). An applicant who dem-
onstrates that he was the subject of past persecution is presumed to
have a well-founded fear of persecution. Id. This presumption may be
rebutted if the immigration judge finds by the preponderance of evi-
dence that (1) there has been a fundamental change in circumstances
such that the applicant no longer has a well-founded fear of persecu-
tion or (2) the applicant could avoid future persecution by relocating
to another part of his native country. 8 C.F.R. § 208.13(b)(1)(i).
Without regard to past persecution, an applicant has a well-founded
fear of persecution if (1) he "has a fear of persecution in his country
of nationality on account of race, religion, nationality, membership in
a particular social group, or political opinion," (2) "there is a reason-
able possibility of suffering such persecution if he or she were to
return to that country," and (3) he is "unable or unwilling to return to,
or avail himself or herself of the protection of, that country because
of such fear." 8 C.F.R. § 208.13(b)(2)(i). The well-founded fear of
persecution standard involves objective and subjective components.
"An applicant may satisfy the subjective element by presenting can-
did, credible, and sincere testimony demonstrating a genuine fear of
persecution." Chen v. INS, 195 F.3d 198, 201-02 (4th Cir. 1999)
(internal quotations omitted). The objective element requires a show-
ing of specific, concrete facts that would lead a reasonable person in
like circumstances to fear persecution. Huaman-Cornelio v. BIA, 979
F.2d 995, 999 (4th Cir. 1992).
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We must uphold the BIA’s determination that Ngarurih is ineligi-
ble for asylum unless that determination is "manifestly contrary to the
law and an abuse of discretion." 8 U.S.C. § 1252(b)(4)(D). Consider-
ing the record as a whole, we ask whether the BIA’s ruling is "sup-
ported by reasonable, substantial, and probative evidence," and we
will reverse the BIA’s decision only if Ngarurih presented evidence
that was "so compelling that no reasonable factfinder could fail to
find the requisite fear of persecution." INS v. Elias-Zacarias, 502 U.S.
478, 481, 483-84 (1992). See also Rusu v. INS, 296 F.3d 316, 325
n.14 (4th Cir. 2002); Gonahasa, 181 F.3d at 541; Huaman-Cornelio,
979 F.2d at 999.
Where, as here, the BIA did not adopt the IJ’s opinion but offered
its own reasons for denying relief, we review the BIA’s order rather
than the IJ’s ruling. See Rusu, 296 F.3d at 320 n.6; Huaman-Cornelio,
979 F.2d at 999. Contrary to Ngarurih’s assertion, the BIA’s order
adequately discloses the grounds upon which it denied Ngarurih’s
requests for relief. See SEC v. Chenery Corp., 318 U.S. 80, 95 (1943).5
A.
The BIA first concluded that Ngarurih’s voluntary return to Kenya
in 1997 undermined his claim to have a well-founded fear of persecu-
tion. Citing 8 C.F.R. § 208.13(b)(1)(i), the BIA reasoned that
although Ngarurih’s past persecution established a presumption of
fear of persecution, the evidence of Ngarurih’s two-month stay in
5The Seventh Circuit’s decision in Mengistu v. Ashcroft, 355 F.3d
1044 (7th Cir. 2004), does not compel a different conclusion. In that
case, the BIA offered a single justification for denying the alien’s motion
to reopen, and the court of appeals invoked Chenery in declining to con-
sider alternative grounds for denying the motion. Id. at 1046-47. The
court then vacated the BIA’s order because the sole ground for its deci-
sion was insufficient to sustain the decision. Id. at 1047-48. It is clear
from the order in this case that the BIA, considering the circumstances
surrounding Ngarurih’s return to Kenya in 1997, denied relief based on
findings that Ngarurih did not establish a well-founded fear of future per-
secution or the necessary conditions for relief based on the severity of his
past persecution. We address only these findings, subject to the harmless-
error analysis that Mengistu itself recognizes. See id. at 1047.
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Kenya without incident constituted evidence of a changed circum-
stance that rebutted the presumption. More generally, the BIA analo-
gized Ngarurih’s return to Kenya to a case in which an asylum
applicant leaves the United States without first obtaining advance
parole; in such a case, the applicant would be deemed to have aban-
doned his asylum application. See 8 C.F.R. § 208.8(a).6
Ngarurih testified that he returned to Kenya in 1997 when he
learned that his younger brother had been sentenced to a term of
imprisonment for rape. Suspecting that his brother had been falsely
accused, Ngarurih left the United States to assist in the criminal
appeal. When he arrived back in his home village, Ngarurih wrote a
letter to the trial court, bearing his own signature, requesting his
brother’s file. After retaining an attorney to prosecute the appeal,
Ngarurih traveled to other villages to investigate the facts of his
brother’s case. Once his brother’s conviction was reversed, Ngarurih
posted the bond that secured his brother’s release from prison.
Ngarurih’s presence in Kenya was known by his family, other tea
farmers who sought to persuade him to run for Parliament, and gov-
ernment officials. Indeed, Ngarurih stated that he was approached by
a police officer who said, "So you’re back . . . we know you’re back
and don’t worry, we’ll be watching you." Thus, despite his self-
described efforts to maintain a low profile, Ngarurih undertook activi-
ties that placed him in direct contact with government officials, seek-
ing the protection of Kenya’s laws. Yet there is no evidence that
Ngarurih suffered any mistreatment at the hands of the Kenyan gov-
ernment during his two-month stay in 1997.
6Ngarurih asserts that the BIA ruled, as a matter of law, that the simple
fact of Ngarurih’s return to Kenya rendered him ineligible for asylum.
The BIA’s order suggests no such ruling. To the contrary, the order indi-
cates that the BIA considered the facts and circumstances of Ngarurih’s
return to Kenya in the context of a routine analysis under 8 C.F.R.
§ 208.13(b)(1)(i). Thus, Ngarurih’s argument based on the United
Nations High Commissioner for Refugees Handbook — which appears
to reject a per se rule that return to the home country results in loss of
refugee status — is misplaced. In any event, the Supreme Court has
noted that the Handbook is not binding on the BIA or this court. INS v.
Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987).
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These facts, found by the IJ and established by Ngarurih’s own tes-
timony, support the BIA’s conclusion that Ngarurih’s return to Kenya
in 1997 constituted a "fundamental change in circumstances" suffi-
cient to rebut the presumption (raised by the fact of past persecution)
that Ngarurih had a well-founded fear of future persecution. The
question for the BIA was not whether Ngarurih had a well-founded
fear of persecution when he returned to Kenya in 1997. The pertinent
question is whether Ngarurih qualified as a "refugee" — a person
unable or unwilling to return to his home country due to a well-
founded fear of persecution — at the time he applied for asylum.
There is perhaps no evidence more relevant to this question than what
happened (or did not happen) to Ngarurih when he actually returned
to Kenya in 1997.
While one could argue that the factfinder could have reached a dif-
ferent conclusion, it is not our task to "reweigh the evidence and
determine which of the competing views is more compelling. It is
instead to ensure that substantial evidence supports the BIA’s judg-
ment." Gonahasa, 181 F.3d at 542. Considering the record as a
whole, we conclude that substantial evidence supports the BIA’s
denial of Ngarurih’s application for asylum.7 Thus, we cannot say that
the BIA’s ruling is manifestly contrary to law or an abuse of discre-
tion. See 8 U.S.C. § 1252(b)(4)(D).
7Ngarurih sought withholding of removal as an alternative to asylum.
Withholding of removal is available only to an alien who can demon-
strate a "clear probability" of persecution on account of his race, religion,
nationality, membership in a social group, or political opinion. Rusu, 296
F.3d at 324 n.13. Because this standard is more demanding than the
"well-founded fear" standard applicable to asylum requests, Ngarurih’s
failure to satisfy the lesser standard means that he cannot demonstrate
entitlement to withholding of removal. See Huaman-Cornelio, 979 F.2d
at 1000. Ngarurih does not challenge the denial of relief under the Con-
vention Against Torture, and we do not consider that issue here. See
Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001) (stating that failure to
raise a challenge in an opening brief results in abandonment of that chal-
lenge).
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B.
The BIA further ruled that Ngarurih’s return to Kenya in 1997
undermined his claim to so-called "humanitarian asylum." Even in the
absence of a well-founded fear of persecution, an immigration judge
has discretion to grant asylum to an applicant who demonstrates
"compelling reasons for being unwilling or unable to return to the
country arising out of the severity of the past persecution" or that
"there is a reasonable possibility that he or she may suffer other seri-
ous harm upon removal to that country." 8 C.F.R. § 208.13(b)(1)(iii).
See also Krastev v. INS, 292 F.3d 1268, 1271 (10th Cir. 2002)
(describing asylum conferred under this regulation as "humanitarian
asylum").
We have construed this exception narrowly, stating that humanitar-
ian asylum is available only in "‘the rare case where past persecution
is so severe that it would be inhumane to return the alien even in the
absence of any risk of future persecution.’" Gonahasa, 181 F.3d at
543 (quoting Vaduva v. INS, 131 F.3d 689, 690 (7th Cir. 1997)).
Accord Toptchev v. INS, 295 F.3d 714, 721-22 (7th Cir. 2002);
Krastev, 292 F.3d at 1280. In short, "[e]ligibility based on severity of
persecution alone is reserved for the most atrocious abuse."
Gonahasa, 181 F.3d at 543. Accord Bucur v. INS, 109 F.3d 399, 405
(7th Cir. 1997) (describing the "humanitarian asylum" regulation as
"designed for the case of the German Jews, the victims of the Chinese
‘Cultural Revolution,’ survivors of the Cambodian genocide, and a
few other such extreme cases").
The BIA concluded that Ngarurih’s return to Kenya in 1997 — a
return made for the purpose of assisting in his brother’s appeal in
Kenya’s courts — was a "willing" return that undermined his present
claim to be "unwilling" to return to Kenya based on his past persecu-
tion. While we have no doubt that Ngarurih felt a need to help his
brother through legal processes, that fact does not answer the question
whether the circumstances were so objectively compelling as to ren-
der Ngarurih’s return to Kenya "unwilling." After reviewing the entire
record, and considering the particular facts of Ngarurih’s return, we
cannot say that the BIA’s conclusion was manifestly contrary to law
or an abuse of discretion. See 8 U.S.C. § 1252(b)(4)(D).
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Even if the BIA erred in finding Ngarurih willing to return to
Kenya, that error was harmless.8 Ngarurih’s mistreatment — horrible
as it was — does not compare in severity to the kinds of persecution
for which the humanitarian asylum regulation was designed. The sem-
inal case on humanitarian asylum involved a native of China who tes-
tified that both he and his family suffered persecution for several
years during the Cultural Revolution. Matter of Chen, 20 I. & N. Dec.
16, 19 (BIA 1989). When Chen was only eight years old, his father,
a Christian minister, became a target of the Red Guards. Id. The Red
Guards ransacked his house, put him in prison, and dragged him
through the streets more than fifty times over several months. Id. Dur-
ing a Bible burning in 1967, Chen’s father was pushed into a bonfire
and badly burned. Id. Chen, still only a child, was put on house arrest
for six months; when he cried, Red Guards kicked and bit him and
deprived him of food. Matter of Chen, 20 I. & N. Dec. at 20.
Although Chen was ultimately allowed to attend school, his persecu-
tion did not stop. On different occasions, Chen was pelted with rocks,
denied medical care, and exiled to rural villages for "re-education."
Id. Even though the regime had changed such that Chen could not
demonstrate a well-founded fear of persecution, the BIA granted
Chen humanitarian asylum. Matter of Chen, 20 I. & N. Dec. at 19-21.
8Harmless-error analysis applies in immigration cases. See Gonahasa,
181 F.3d at 544 (citing Bucur, 109 F.3d at 405-06). While the general
rule is that "an administrative order cannot be upheld unless the grounds
upon which the agency acted in exercising its powers were those upon
which its action can be sustained," Chenery, 318 U.S. at 95, reversal is
not required when the alleged error "clearly had no bearing on the proce-
dure used or the substance of the decision reached," Massachusetts Trs.
of E. Gas & Fuel Ass’ns v. United States, 377 U.S. 235, 248 (1964).
Accord In re Watts, 354 F.3d 1362, 1370 (Fed. Cir. 2004) (stating that
the Chenery principle "does not obviate the need to consider the issue of
harmless error"); Nazaraghaie v. INS, 102 F.3d 460, 465 (10th Cir. 1996)
(concluding that the BIA’s alleged failure to consider certain evidence
was harmless error since "the result in this case would be no different");
Sahara Coal Co. v. Office of Workers’ Comp. Programs, 946 F.2d 554,
558 (7th Cir. 1991) (noting that "harmless-error doctrine is available in
judicial review of administrative action; it is an exception to the Chenery
principle").
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At about the same time that Ngarurih was being jailed and tortured
for his political opposition in Kenya, David Daada Gonahasa was suf-
fering similar mistreatment in Uganda. After organizing rallies in
opposition to the ruling party, Gonahasa was seized by military intel-
ligence officers, "stripped, beaten, cut on his arms by bayonets, and
confined in a small cell." Gonahasa, 181 F.3d at 540. He later learned
that government officers had "visited his home, roughed up his wife,
and threatened to kill him." Id. On these facts, we concluded (in dicta)
that Gonahasa was not entitled to humanitarian asylum because his
past persecution was "simply not severe enough" to warrant such
relief. Gonahasa, 181 F.3d at 544.
We later denied humanitarian asylum to Constantin Rusu, a native
Romanian who was persecuted by the Ceausescu regime for organiz-
ing a transcendental meditation group. Rusu, 296 F.3d at 318. Rusu
alleged that he was "interrogated and assaulted on multiple occasions
by the Romanian secret police (the Securitate)" and that on one occa-
sion, "they tortured him by removing his teeth with pliers and a
screwdriver." Id. We concluded that "although the persecution he suf-
fered . . . was horrible, it is not of the scale warranting a grant of asy-
lum." Rusu, 296 F.3d at 325.
We have reviewed the entire record in this case and conclude that
Ngarurih’s past persecution was no more severe than the persecution
suffered by Gonahasa and Rusu, and not nearly as severe as the perse-
cution suffered by Chen. Even if Ngarurih were unwilling to return
to his home country, he cannot establish past persecution severe
enough to warrant relief under § 208.13(b)(1)(iii). Thus, we cannot
say that the BIA’s denial of humanitarian asylum in this case is mani-
festly contrary to law or an abuse of discretion. See 8 U.S.C.
§ 1252(b)(4)(D).
C.
Having concluded that the evidence in the record does not compel
the granting of asylum, we address Ngarurih’s alternative request to
restore his opportunity to depart the United States voluntarily. Both
the IJ and the BIA granted Ngarurih voluntary departure. This relief
was available for thirty days after the BIA’s order was filed, and that
period has long since expired. Relying upon our decision in Ramsay
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v. INS, 14 F.3d 206 (4th Cir. 1994), Ngarurih urges us to reinstate the
BIA’s award of voluntary departure by restarting the 30-day period
granted by the BIA’s order.
Ngarurih’s request implicates the Illegal Immigration and Immi-
grant Responsibility Act of 1996 ("IIRIRA"), an enactment well
known for restricting judicial review of discretionary decisions in
immigration matters. See Reno v. American-Arab Anti-Discrimination
Cmte., 525 U.S. 471, 486 (1999) (noting that "many provisions of
IIRIRA are aimed at protecting the Executive’s discretion from the
courts — indeed, that can fairly be said to be the theme of the legisla-
tion").9 Before IIRIRA, it was unsettled whether courts of appeals had
authority to reinstate voluntary departures. Some courts held that
absent a specific grant of authority to award such relief, it was left to
the Attorney General alone to decide whether to extend the period for
voluntary departure. See, e.g., Nkacoang v. INS, 83 F.3d 353, 357
(11th Cir. 1996); Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.
1994); Alshweikh v. INS, 990 F.2d 1025, 1027 (8th Cir. 1993). The
Ninth Circuit, on the other hand, held that reinstatement of voluntary
departure was automatic upon affirmance of a final order of deporta-
tion. Contreras-Aragon v. INS, 852 F.2d 1088, 1096-97 (9th Cir.
1988) (en banc). Other courts held that nothing prevented a court of
appeals from reinstating voluntary departure, under certain limited
circumstances, in the course of considering a final order of deporta-
tion. Kaczmarczyk v. INS, 933 F.2d 588, 598 (7th Cir. 1991);
Umanzor-Alvarado v. INS, 896 F.2d 14, 15-16 (1st Cir. 1990).
We held in Ramsay that a court of appeals could reinstate a volun-
tary departure in two circumstances: (1) where "the INS is wielding
its discretion to withhold voluntary departure to deter applicants from
seeking judicial review of BIA decisions," or (2) where "the [INS]
does not suggest it will present the district director with any other rea-
son for refusing the reinstatement." 14 F.3d at 213 (alteration in origi-
nal). Where a court concluded that voluntary departure should be
reinstated, "the period for voluntary departure granted by the BIA
9Because Ngarurih was placed in removal proceedings after April 1,
1997, IIRIRA’s permanent rules apply. See Orquera v. Ashcroft, 357
F.3d 413, 418 n.1 (4th Cir. 2003).
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begins to run anew from the date the mandate issues from the court
of appeals reinstating the voluntary departure." Id. at 213 n.8.
In reaching this conclusion, we relied in part upon the First Cir-
cuit’s analysis in Umanzor-Alvarado, which offered two basic justifi-
cations for reinstating voluntary departure. First, the court expressed
the concern that the INS might employ voluntary departure orders to
keep aliens from prosecuting appeals from final orders of deportation.
See Umanzor-Alvarado, 896 F.2d at 16. Accord Kaczmarczyk, 933
F.2d at 598. This concern reflected the fact that under pre-IIRIRA
immigration law, a court of appeals lost jurisdiction of a petition for
review once the alien left the United States. See 8 U.S.C. § 1105a(c)
(1994). Second, the court noted that "nothing in the law . . . deprives
[the court of appeals] of the legal power to order the appropriate rem-
edy." Umanzor-Alvarado, 896 F.2d at 16.
The enactment of IIRIRA undercut both of these justifications for
reinstatement of voluntary departure. Perhaps most fundamentally,
IIRIRA repealed former § 1105a and replaced it with a new judicial
review provision, 8 U.S.C. § 1252, that does not purport to cut off
appellate jurisdiction once an alien leaves the country. See Moore v.
Ashcroft, 251 F.3d 919, 922 (11th Cir. 2001) ("Noticeably absent
from the permanent rules is any similar language removing federal
review jurisdiction in the event an alien departs or is removed.").
Thus, 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. See Zazueta-
Carrillo v. Ashcroft, 322 F.3d 1166, 1171 (9th Cir. 2003) (stating that
"Congress’s desire to expedite removal by voluntary assent now does
not conflict with the alien’s ability to pursue a petition for review");
Tapia-Garcia v. INS, 237 F.3d 1216, 1217 (10th Cir. 2001) (stating
that "deportation no longer forecloses judicial review").
IIRIRA also changed the rules concerning judicial review of volun-
tary departure decisions. Section 1229c specifically precludes review
of a denial of a request for voluntary departure. 8 U.S.C. § 1229c(f).
Likewise, the general judicial review provision precludes review of
orders granting voluntary departure:
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Notwithstanding any other provision of law, no court shall
have jurisdiction to review —
(i) any judgment regarding the granting of relief under
section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title
. . . .
Id. § 1252(a)(2)(B) (emphasis added). Thus, it is no longer true that
"nothing in the law . . . deprives [the court of appeals] of the legal
power" to reinstate voluntary departure. Umanzor-Alvarado, 896 F.2d
at 16. These intervening changes in the statute make Ramsay inappli-
cable to this, or any, permanent rules case.10
This conclusion is consistent with Congress’ expressed intention to
preserve the exercise of executive discretion in granting voluntary
departures. Under current law, the decision whether to permit an alien
to depart the United States voluntarily is committed entirely to the
discretion of the Attorney General. 8 U.S.C. § 1229c(b)(1). By regu-
lation, the Attorney General has permitted the INS district director, in
the exercise of discretion, to extend the period initially prescribed for
voluntary departure. 8 C.F.R. § 240.26. As the Ninth Circuit has rec-
ognized, "it is executive rather than judicial officers who decide when
an alien must depart," and "[n]either the statute nor the regulations
give courts any designated role in this process of setting the deadline
for departure." Zazueta-Carrillo, 322 F.3d at 1172.
The BIA gave Ngarurih thirty days from the date of its order —
until February 7, 2003 — to depart the country voluntarily. That
deadline has long since passed, and Ngarurih has even exhausted the
maximum period permitted by the statute. See 8 U.S.C. § 1229c(b)(2)
(providing that the period for voluntary departure cannot exceed sixty
days). "For us to specify in effect a different period starting more than
a year later would contravene Congress’s scheme and invade the
executive branch’s authority to specify a deadline for voluntary
departure." Zazueta-Carrillo, 322 F.3d at 1172-73. Because the stat-
ute plainly precludes our review of the BIA’s order granting voluntary
10Of course, Ramsay remains applicable to cases not governed by
IIRIRA’s permanent rules, i.e., cases in which removal proceedings were
commenced before April 1, 1997.
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departure, we hold that a court of appeals lacks jurisdiction to enter-
tain a request to reinstate voluntary departure.11
Relying upon recent decisions from the Sixth and Ninth Circuits,
Ngarurih further contends that we should exercise our general equita-
ble power, pursuant to 28 U.S.C. § 2349, to stay the period specified
for voluntary departure. These decisions hold that an alien may obtain
a stay of his voluntary departure period if he meets the requirements
for a stay of removal. See Nwakanma v. Ashcroft, 352 F.3d 325, 327
(6th Cir. 2003) (per curiam); El-Himri v. Ashcroft, 344 F.3d 1261,
1262 (9th Cir. 2003). Having concluded, however, that 8 U.S.C.
§ 1252(a)(2)(B) precludes judicial review of the BIA’s order granting
voluntary departure, we cannot evade this statutory directive by resort
to equity. Indeed, since we lack jurisdiction over the BIA’s order
granting voluntary departure, there is nothing before us to stay.
It is not enough to say that we have jurisdiction over the order of
removal. That fact gives us only the prerogative to apply equitable
remedies to that order. Thus, we are free to grant a stay of removal
when the alien satisfies the statutory requirements for such relief. See
8 U.S.C. § 1252(f)(2). We are not free to grant additional relief with
respect to a voluntary departure order that even the dissent agrees is
not properly before us.
Rather than explain how a court can operate on an order not prop-
erly before it, the dissent argues that appellate review is "meaning-
less" for asylum applicants who "are forced to return to countries
11We are aware that the First Circuit continues to reinstate voluntary
departures even in cases decided under IIRIRA’s permanent rules. See,
e.g., Velasquez v. Ashcroft, 342 F.3d 55, 59 (1st Cir. 2003); Khalil v.
Ashcroft, 337 F.3d 50, 56 (1st Cir. 2003). Citing Velasquez, the Sixth
Circuit reinstated voluntary departure in Loulou v. Ashcroft, 354 F.3d
706, 710 (6th Cir. 2003). Unfortunately, neither the First Circuit nor the
Sixth Circuit has offered any reasoned justification for continuing this
practice in permanent rules cases. The First Circuit relies upon pre-
IIRIRA authorities for the proposition that reinstatement is permissible.
See Yatskin v. INS, 255 F.3d 5, 11 (1st Cir. 2001) (a permanent rules case
citing Alvarez-Flores v. INS, 909 F.2d 1, 8 (1st Cir. 1990), a pre-IIRIRA
decision). We decline to follow this approach.
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where they may be killed or imprisoned and thus unable to return to
the United States if we determine that they are entitled to asylum."
Post at 23. See also Nwakanma, 352 F.3d at 326; Zazueta-Carrillo,
322 F.3d at 1177 (Berzon, J., concurring). This is not so much an
objection to review procedures concerning voluntary departure as it
is an objection to the procedures for appellate review of immigration
cases generally. Absent a stay of removal, an alien in an ordinary
immigration appeal may be removed to his home country even before
his appeal is decided. Even in that case, there is a possibility that the
alien will face persecution in the home country rendering him unable
to return should he prevail on appeal. The remedy for this concern is
the stay of removal, which we retain the option to grant in any case
where the alien satisfies the statutory requirements. This relief is just
as available to the alien who sought voluntary departure as it is to the
alien who did not.
In essence, the dissent contends that an alien with a meritorious
asylum claim should be permitted to take the benefits of voluntary
departure without bearing any of the costs. See post at 24-25 (arguing
that "we should not force aliens with possibly meritorious asylum
appeals to choose between preserving certain benefits made available
under the INA and their safety"). This contention cannot be recon-
ciled with the voluntary departure scheme described in the statute.
This statutory scheme reveals Congress’ intention to offer an alien a
specific benefit — exemption from the ordinary bars on subsequent
relief — in return for a quick departure at no cost to the government.
So important was the quick-departure aspect of this bargain that Con-
gress provided for certain penalties to attach when an alien overstays
his voluntary departure period. See 8 U.S.C. § 1229c(d). Thus, an
alien considering voluntary departure must decide whether an exemp-
tion from the ordinary bars on subsequent relief is worth the cost of
returning to the home country within the period specified. Having
made his election, however, the alien takes all the benefits and all the
burdens of the statute together.12
12Contrary to the dissent’s suggestion, voluntary departure is, from
beginning to end, voluntary. The alien must request the relief; it is not
offered as a matter of course. See 8 C.F.R. § 240.25(c). Even if he
requests the relief and obtains it, the alien may later reject it by overstay-
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Under the dissent’s view, an alien could request voluntary depar-
ture, overstay the specified period and deprive the government of a
quick departure, wait out the appellate review process, and then
demand the full benefits of voluntary departure. This scenario is not
at all what Congress intended, and it is not for us to recalibrate the
scheme that Congress created in the manner that the dissent now
urges. The voluntary departure order is not properly before us, as
Congress has insulated that order from appellate review. We are not
at liberty to apply equitable remedies to that order, certainly not in a
way that contravenes the statutory scheme. Cf. INS v. Pangilinan, 486
U.S. 875, 883 (1988) (stating that "courts of equity can no more disre-
gard statutory . . . requirements and provisions than can courts of law").13
III.
Congress has reposed broad authority in the Attorney General to
adjudicate individual immigration cases, and Congress has expressly
protected this executive discretion by restricting appellate jurisdiction
ing the period specified for departure. If he rejects voluntary departure
in this manner, then he is subject to removal from the United States in
the ordinary course. The fact that his choice carries real consequences —
a monetary penalty and subjection to the ordinary bars on subsequent
relief — means that the alien has a real choice to make, not that he is,
as the dissent says, "forced" to leave. Post at 23-24.
13Even assuming that Nwakanma and El-Himri correctly state the law,
Ngarurih would not be entitled to a stay of voluntary departure because
he cannot satisfy the requirements for a stay of removal. Under the stat-
ute, a court of appeals may enjoin a removal only if "the alien shows by
clear and convincing evidence that the entry or execution of [the order
of removal] is prohibited as a matter of law." 8 U.S.C. § 1252(f)(2). We
have already concluded that Ngarurih is not entitled to asylum, so his
removal is not prohibited as a matter of law. Moreover, Ngarurih’s
request for a stay of voluntary departure was made after the 30-day
period for voluntary departure had already expired; neither Nwakanma
nor El-Himri purports to authorize a stay in such a circumstance. See
Nwakanma, 352 F.3d at 327 (noting that the alien moved for a stay on
the last day before his voluntary departure period expired); El-Himri, 344
F.3d at 1263 n.2 (expressly reserving the question whether a court of
appeals can stay a departure period that had already expired).
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and constructing deferential standards of review. The BIA ruled that
Ngarurih’s claim to asylum was not powerful enough to warrant the
extraordinary relief of asylum. That ruling is supported by substantial
evidence and applicable law, and it must be affirmed. The BIA also
granted Ngarurih thirty days within which to depart the United States
voluntarily. Because Congress left it to executive officers, not this
court, to determine how long an alien should have to exercise volun-
tary departure, we cannot reinstate voluntary departure or otherwise
alter the BIA’s order in this respect. For all of these reasons, the peti-
tion for review is hereby
DENIED.
GREGORY, Circuit Judge, concurring in part and dissenting in part:
For the reasons that follow, I concur in the majority’s conclusion
that substantial evidence supports the Board of Immigration Appeal’s
("BIA") denial of Ngarurih’s application for asylum and that the Ille-
gal Immigration Reform and Immigrant Responsibility Act of 1996
("IIRIRA") divests us of jurisdiction to reinstate Ngarurih’s voluntary
departure period. However, while I believe that Ngagurih is not enti-
tled to a stay of voluntary departure, I respectfully dissent from the
majority’s far reaching, and in my view unnecessary, conclusion that
the IIRIRA precludes us from exercising our general equitable powers
to stay or toll a voluntary departure period. As the Sixth and Ninth
Circuits, I do not believe that the IIRIRA precludes us from staying
a voluntary departure period pending our resolution of an asylum
appeal provided that the merits of such appeal justify a stay of the
removal order. Nwakanma v. Ashcroft, 352 F.3d 325, 326 (6th Cir.
2003)(per curiam)(holding that the IIRIRA does not bar federal
appellate courts from staying a voluntary departure period and thus
concluding that "[a] stay of voluntary departure pending appellate
review should . . . be available on the same showing that authorizes
a stay of removal pending review"); El Himri v. Ashcroft, 344 F.3d
1261, 1262 (9th Cir. 2003)("[W]e hold that [post-IIRIRA] this court
retains equitable jurisdiction to stay the voluntary departure period . . .
[and] that the standards for obtaining a stay of removal shall also
apply to stays of voluntary departure."). Without the ability to main-
tain the status quo by staying a voluntary departure period, our review
of asylum appeals will be rendered meaningless because the alien will
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already have been subjected to the harm from which our decision is
supposed to protect him or her. If that harm comes in the form of
death, imprisonment or the inability to depart their native country, our
determination that an alien is entitled to asylum is meaningless
because the alien will be unable to return to the United States and thus
give effect to our decision. In the instances in which aliens avail
themselves of a voluntary departure and no harm results therefrom,
we will be factually forced to conclude that the alien does not have
a well-founded fear of persecution. Thus, our appellate review will be
rendered a mere formality in the asylum application process.
I.
The BIA denied Ngarurih’s application for political asylum
because "his return to Kenya for 2 months in 1997 . . . constitute[d]
a fundamental change in circumstances and diminishe[d] his claim to
have a well-founded fear of future persecution." J.A. 319. Like the
majority, I believe substantial evidence supports this conclusion. Dur-
ing his two month return to Kenya, Ngarurih was publicly involved
in his younger brother’s criminal appeal, submitting court documents
bearing his signature, traveling to various villages in Kenya to investi-
gate the facts of his brother’s case and posting his brother’s bond.
Despite being publicly active in his brother’s criminal appeal,
Ngarurih, whose presence government officials were aware of, was
not subjected to any attacks, bodily harm, threats or other coercive
measures during his two month stay in Kenya.* Indeed, government
officials did not even attempt to impede Ngarurih’s efforts to assist
with his brother’s appeal and release from prison. Moreover, Ngarurih
has not brought to our attention any events that have occurred subse-
quent to his 1997 trip that would cause him to have a well-founded
fear of persecution if he were to return to Kenya.
The BIA also denied Ngarurih’s application for "humanitarian asy-
lum" on the basis that "his willing return to Kenya undermine[d] his
claim to have ‘compelling reasons for being unwilling or unable to
return’ such that asylum [was] warranted, even in the absence of a
well-founded fear." Id. (quoting 8 C.F.R. § 208.12(b)(1)(iii)(emphasis
*I also note that Ngarurih’s family did not experience any form of per-
secution during his two month stay in Kenya.
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added)). Unlike the majority, I believe that the BIA incorrectly deter-
mined that Ngarurih "willingly" returned to Kenya. Ngarurih only
returned to Kenya after being informed that his younger brother—
whom he reared as a son prior to entering the United States—had
been falsely accused of raping their niece and forced to enter a guilty
plea. Having being tortured in a Kenyan prison himself, Ngarurih
understandably felt compelled to assist his brother, whom he viewed
more like a son, in appealing what he believed to be an unjust convic-
tion even if doing so required him to place his life in danger by
returning to Kenya. Under such circumstances, I do not believe that
Ngarurih’s trip to Kenya can be considered one that was taken "will-
ingly." Nonetheless, like the majority, I am unable to find that the
BIA’s denial of Ngarurih’s application for "humanitarian asylum" is
manifestly contrary to the law or an abuse of discretion given that
"humanitarian asylum" has been limited to extreme cases, such as that
"of the German Jews, the victims of the Chinese ‘Cultural Revolu-
tion,’ [and] survivors of the Cambodian genocide." Bucur v. INS, 109
F.3d 399, 405 (7th Cir. 1997)(internal citation omitted).
II.
The majority concludes that the IIRIRA precludes us from both
reinstating and staying Ngarurih’s voluntary departure period. While
I agree that the IIRIRA divests us of jurisdiction to reinstate
Ngarurih’s voluntary departure period, I do not believe that the
IIRIRA precludes us from staying Ngarurih’s voluntary departure
period. Rather, I simply believe that Ngarurih is not entitled to a stay
of his voluntary departure period because he is unable to satisfy the
requirements for a stay of removal.
The IIRIRA provides that "[n]o court shall have jurisdiction over
an appeal from [the] denial of a request for an order of voluntary
departure . . . nor shall any court order a stay of an alien’s removal
pending consideration of any claims with respect to voluntary depar-
ture." 8 U.S.C. § 1229c(f). The IIRIRA further provides that
"[n]otwithstanding any other provision of law, no court shall have
jurisdiction to review . . . any judgment regarding the granting of
relief under section . . . 1229c [voluntary departure] of this title." Id.
§ 1252(a)(2)(B)(i). Based on these provisions, I concur in the majori-
ty’s conclusion that the IIRIRA precludes us from reinstating
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Ngarurih’s voluntary departure period. These provisions make clear
Congress’s intent to divest federal appellate courts of jurisdiction to
determine whether aliens are entitled to the discretionary relief of vol-
untary departure. Given that we no longer have jurisdiction to review
the BIA’s grant or denial of voluntary departure, I do not believe we
have the authority to reinstate the BIA’s voluntary departure determi-
nations.
I do not, however, believe that these provisions preclude us from
exercising our equitable jurisdiction to stay a voluntary departure
period pending our resolution of an asylum appeal. The provision
relied upon by the majority to reach this conclusion—8 U.S.C.
§ 1252(a)(2)(B)(i)—only precludes us from reviewing the merits of
the BIA’s decision to grant voluntary departure. As the Sixth Circuit
recently held: "[I]n granting a stay of voluntary departure, we do not
pass on the substance of the decision to grant voluntary departure; we
only stay the immediate effectiveness of the relief already granted by
[the BIA] in [its] discretion, to allow the alien petitioner to receive
appellate review." Nwakanma, 352 F.3d at 326. Consequently, by
granting a stay of voluntary departure we do not "evade," as the
majority concludes, the statutory mandate of 8 U.S.C.
§ 1252(a)(2)(B)(i)—"no court shall have jurisdiction to review . . .
any judgment regarding the granting of relief under section . . . 1229c
[voluntary departure]"—by resort to equity. Rather, we ensure, by
maintaining the status quo, that our decisions rendered in asylum
appeals, appeals over which we clearly have jurisdiction, are not ren-
dered meaningless. As the Ninth and Sixth Circuits have noted, asy-
lum appeals will in effect be rendered meaningless if individuals that
have fled their native lands based on well-founded fears of persecu-
tion are forced to return to countries where they may be killed or
imprisoned and thus unable to return to the United States if we deter-
mine that they are entitled to asylum. Nwakanma, 352 F.3d 326
("Asylum applicants with potentially meritorious cases establishing
their genuine fear of persecution in their home countries will face
either returning to those countries and possibly life-threatening perse-
cution or staying in the United States, letting the clock run out on
their voluntary departure periods, and suffering the penalties that
attach."); Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1177 (9th Cir.
2003)(Berzon, J., concurring)("Without our equitable authority to stay
the availability of voluntary departure periods, at the time an alien is
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granted voluntary departure he or she would be faced with having to
leave forthwith to preserve the benefits of voluntary departure, risking
nonreturn in spite of a potentially meritorious case . . . [thus] in effect
void[ing] the asylum appeal.").
Further undermining the majority’s conclusion is the fact that the
IIRIRA only limits our authority to stay BIA orders so as to allow for
the consideration of claims pertaining to voluntary departure. Specifi-
cally, the IIRIRA provides that "[n]o court shall . . . order a stay of
an alien’s removal pending consideration of any claims with respect
to voluntary departure." 8 U.S.C. § 1229c(f). Consequently, the
IIRIRA "only prohibits stays of removal pending consideration of
voluntary departure claims, not the opposite, stays of granted periods
of voluntary departure pending consideration of removal orders."
Zazueta-Carrillo, 322 F.3d at 1176 (Berzon, J., concurring). The fact
"[t]hat certain kinds of stays pertaining to voluntary departure orders
are prohibited but not others is, under the case law interpreting the
IIRIRA, a strong indication that, except as limited by the statute, we
retain our traditional equitable power to issue stays preserving the sta-
tus quo." Id.; see Reno v. American-Arab Anti-Discrimination Comm.,
525 U.S. 471, 482, 487 (1999)(narrowly construing section 1252(g)
of the IIRIRA); Andreiu v. Ashcroft, 253 F.3d 477, 481-82 (9th Cir.
2001)(en banc)(narrowly construing section 1252(f) of the IIRIRA).
In addition to not being supported by the IIRIRA’s text, the result
that follows from the majority’s conclusion counsels against it. Under
the majority’s conclusion, an alien denied voluntary departure, but
who meets the standard for a stay of removal, can obtain equitable
relief and thus remain in this country while pursuing his appeal
whereas an alien granted the benefit of voluntary departure must leave
the country while seeking judicial review. Some may argue that this
is the price that aliens who voluntarily depart pay in return for the
benefit of not being barred from obtaining relief under the Immigra-
tion and Naturalization Act ("INA") for a period of ten years, as are
aliens removed involuntarily. This, however, is a policy decision best
left to Congress. Thus, absent clear statutory language, which I do not
find in the IIRIRA, we should not force aliens with possibly meritori-
ous asylum appeals to choose between preserving certain benefits
made available under the INA and their safety. Moreover, such rea-
soning fails to recognize that aliens with well-founded fears of perse-
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cution will be unable to take advantage of the benefits conferred by
voluntary departure if they are killed or imprisoned upon returning to
their native country.
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