*

Honorable Joseph F. Weis, Jr., Senior U.S. Circuit Judge

for the Third Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-8241.

Lebogang NKACOANG, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

May 16, 1996.

Petition for Review of an Order of the Board of Immigration Appeals

(Georgia Case).

Before BIRCH, Circuit Judge, and CLARK and WEIS *

, Senior Circuit

Judges.

CLARK, Senior Circuit Judge:

Petitioner seeks review of an adverse order issued by the

Board of Immigration Appeals, which upheld the decision of an

immigration judge (IJ) to deny petitioner's application for asylum

or withholding of deportation. Petitioner also requests that, in

the event we deny his petition for review, we extend or reinstate

the thirty-day privilege of voluntary departure granted by the

Board when it affirmed the IJ's determination that he was

immediately deportable. For the reasons stated below, we uphold

the Board's decision on asylum and withholding of deportation, and

deny petitioner's alternate request regarding voluntary departure,

without prejudice, for lack of jurisdiction.

Asylum and Withholding of Deportation

Lebogan Nkacoang, a citizen of the Union of South Africa,

entered this country on a student visa in 1984. In 1989, he
applied for asylum from alleged persecution based on political

opinion under 8 U.S.C. § 1101(a)(42), 1158(a). Specifically,

petitioner alleged that, before entering this country, he

participated in anti-apartheid activities as a student and was

affiliated with the Pan Africanist Congress (PAC), an organization

that fought the government and its apartheid policies. He

testified that, in the early 1970s, while a student, he was

expelled from two separate high schools. In the first school, the

entire student body was expelled for going on strike and refusing

to attend classes. He was allowed to take the examination for his

junior certificate, but was denied readmission because he was

regarded as a troublemaker. In the second school, he was expelled

because he was a leader of a student strike during which the school

and the principal's car were burned. He was also arrested because

of the arson, but was released after being held for one week. He

then left South Africa to continue in his studies in Lesotho.

In Lesotho, petitioner claimed that he was recruited by both

the PAC and the African National Congress (ANC) and chose the PAC

because he thought it would be better at putting pressure on the

minority white government. The PAC sent him to Tanzania where he

completed high school and entered a university. He left Tanzania

in 1983 to continue his studies in Europe, and then returned to

Tanzania where he worked as a fellowship administrator in the PAC

education department. While working in that position, petitioner

developed a personality clash with his supervisor and became

disturbed by the factional fighting within the PAC. He decided to

go on with his life, and obtained a United Nations scholarship to
 1

INS v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 2492, 81

L.Ed.2d 321 (1984). 

 2INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207,

1212, 94 L.Ed.2d 434 (1987). 

study at Tuskegee University. He maintained that he is no longer

actively involved or a member of the PAC, and is trying to

disassociate himself from the PAC.

Following an evidentiary hearing, the IJ found that the

government had taken no action against him "other than for his

unlawful behavior in burning property at his high school," and

described his departure from South Africa as a flight from

"possible prosecution" rather than "perceived persecution." The IJ

concluded that petitioner had presented no evidence "which would

lead a reasonable person to conclude that he would have a

well-founded fear of persecution if he should return to South

Africa," and, accordingly, denied all requested relief except

voluntary departure. The Board found the IJ's decision supported

by the record, but extended petitioner's voluntary departure date

thirty days from the date of its order.

 An applicant for asylum must establish that he is (1) a

"refugee" by showing either past persecution or a well-founded fear

of persecution, 8 U.S.C. § 1101(a)(42)(A), and (2) entitled to

asylum as a matter of discretion, 8 U.S.C. § 1158(a). An applicant

for withholding of deportation must show a "clear probability of

persecution1," or that he will more likely than not be persecuted

if deported2. If an applicant is unable to meet the "well-founded

fear" standard for asylum, he is generally precluded from
 3

See Kazlauskas v. INS, 46 F.3d 902, 907 (9th Cir.1995); 

Hadjimehdigholi v. INS, 49 F.3d 642, 647 (10th Cir.1995). 

qualifying for either asylum or withholding of deportation.3

 A review of the record shows sufficient evidence to support

the IJ's finding that petitioner was detained solely on the basis

of his participation in the arson of his school and principal's

car. Further, the record does not support petitioner's claim that

the Board failed to consider "unrebutted testimony and written

evidence" that the South African police are still pursuing him.

Although petitioner submitted a letter, dated 1989, from his

brother that stated that his family was visited by the South

African police the day after they received a telephone call from

him, the Board considered the letter and found it "insufficient

corroboration" that the government had any ongoing interest in

petitioner. The Board also noted that petitioner failed to present

any evidence that the PAC persecutes its former members.

Voluntary Departure

 If this court affirms the Board, petitioner requests that

this court reinstate the Board's 30 day grant of voluntary

departure, thus not subjecting him to summary deportation upon

issuance of the court's mandate. Respondent Immigration and

Naturalization Service (I.N.S.) responds that statutory and

regulatory authority vest the jurisdiction to reinstate or extend

a grant of voluntary departure solely with the I.N.S. district

director.

The Attorney General "may, in his discretion, permit any alien

under deportation proceedings ... to depart voluntarily from the
 4

8 U.S.C. § 1254(e)(1); 8 U.S.C. § 1252(b). 

 58 C.F.R. 244.2; also see Nocon v. INS, 789 F.2d 1028, 1033

(3rd Cir.1986) (finding that the BIA lacked authority to grant an

extension for voluntary departure). 

 68 U.S.C. § 1105a(a). 

 7Foti v. INS, 375 U.S. 217, 229, 84 S.Ct. 306, 314, 11

L.Ed.2d 281 (1963). 

United States at his own expense in lieu of deportation if such

alien shall establish to the satisfaction of the Attorney General

that he is, and has been, a person of good moral character for at

least five years preceding his application for voluntary departure

under this subsection."4 Further, the Attorney General's

"authority to extend the time within which to depart voluntarily

specified initially by an immigration judge or the Board is within

the sole jurisdiction of the district director.... (T)he district

director's decision shall be served upon the alien and no appeal

shall be taken from it."5

The courts of appeal have jurisdiction to review final orders

of deportation6, and the Supreme Court has held that jurisdiction

to include all determinations "made during and incident to the

administrative proceeding ..., such as orders denying voluntary

departure...."7 However, the issue here is not review of an order

denying voluntary departure or suspension of deportation, but a

request for reinstatement of the voluntary departure period. As

the Tenth Circuit noted, none of the pertinent statutes "provide

any basis whatsoever for this court to assume authority for

affording the discretionary, administrative relief sought by the
 8

Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.), reh'g

denied, 33 F.3d 44 (1994). 

 9Kaczmarczyk v. INS, 933 F.2d 588, 597 (7th Cir.), cert.

denied, 502 U.S. 981, 112 S.Ct. 583, 116 L.Ed.2d 608 (1991); 

Alsheweikh v. INS, 990 F.2d 1025, 1027 (8th Cir.1993); Castaneda

v. INS, 23 F.3d at 1580. 

 10Kaczmarczyk v. INS, 933 F.2d at 598. 

 11Ballenilla-Gonzalez v. INS, 546 F.2d 515, 521-522 (2nd

Cir.1976), cert. denied, 434 U.S. 819, 98 S.Ct. 58, 54 L.Ed.2d 75

(1977); Sibanda v. INS, No. 93-9574, 1994 WL 524973 (10th Cir.

Sep. 27, 1994). 

 12Faddoul v. INS, 37 F.3d 185, 191-192 (5th Cir.1994). 

petitioner."8

This is an issue of first impression in this Circuit, and the

circuit courts are split on this issue. The Seventh, Eighth, and

Tenth Circuits have declined to consider the issue based on lack of

jurisdiction.9 Concerned that the I.N.S. might use its power to

insulate its decisions from judicial review, the Seventh Circuit

said that "should it come to our attention that the I.N.S. is

wielding its discretion to withhold voluntary departure to deter

applicants from seeking review of BIA decisions," scrutiny of that

discretionary exercise might expand.10 The Second and Tenth

Circuits denied reinstatement without prejudice to renewal before

the district director.11 Although not reaching the issue because

the immigrant had not requested an extension from the Board, the

Fifth Circuit suggested that an alien facing an adverse deportation

decision should request a voluntary departure period from the Board

that would expire within a specified time after the Board's

decision or the denial of a timely filed petition for review.12

Other circuits have granted an extension. The First Circuit,
 13Umanzor-Alvarado v. INS, 896 F.2d 14, 15-16 (1st

Cir.1990). 

 14Ramsay v. U.S.I.N.S., 14 F.3d 206, 211-213 (4th Cir.1994). 

 15Contreras-Aragon v. INS, 852 F.2d 1088, 1096-1097 (9th

Cir.1988). 

 16Castaneda v. INS, 23 F.3d at 1583. 

noting that the appeal was neither meritless nor interposed solely

for delay and the government had not suggested that it would

present the district director with any other reason for refusing

the reinstatement, directed the government to treat the voluntary

departure period as beginning to run on the effective date of its

mandate.13 The Fourth Circuit reinstated the thirty-day period for

voluntary departure from the date of issuance of the mandate,

noting that there was no evidence that the circumstances that

originally entitled the immigrant to a voluntary departure had

changed and the I.N.S. had not suggested that it would present the

district director with any other reason for refusing

reinstatement.14 The Ninth Circuit en banc, "viewing the award of

voluntary departure as part of the deportation order," held that

"the voluntary departure period does not expire until after our

affirmance of the deportation order."15

We find the reasoning of the Tenth Circuit persuasive, and

adopt the reasoning stated in Castaneda v. INS that, absent a

Congressional empowerment to act, this court lacks jurisdictional

authority to grant an extension.16

 Here, the Board granted petitioner an extension within the

February 4, 1994, decision dismissing his appeal from the denial of
 178 U.S.C. § 1105a(a)(3). Petitioner asserts that on the

same day that he filed his petition for review, he also requested

an extension of voluntary departure from the district director. 

No action has been taken on that request. 

 18The district director's decision on the request for

extension of voluntary departure is reviewable in the district

court. See Castaneda, 23 F.3d at 1579. 

his requests for asylum and withholding of deportation, stating

that "the respondent is permitted to depart from the United States

voluntarily within 30 days from the date of this order or any

extension beyond that time as may be granted by the district

director." Petitioner's petition for review was filed in this

court on March 4, 1994, within the 30 days granted for departure,

and stayed deportation pending the determination of the petition.17

The request for reinstatement is, therefore, denied.18

Conclusion

The order of the Board of Immigration Appeals is AFFIRMED, and

petitioner's request for reinstatement of his period of voluntary

departure is DENIED without prejudice to consideration of his

request for an extension pending before the district director.