FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE J. PADILLA-PADILLA; 

Nos. 02-73627 GUADALUPE D. PADILLA-ENRIQUEZ;

03-73964 ADELA ENRIQUEZ,

Petitioners, Agency Nos.  A75-301-560

v. A75-301-561

ALBERTO R. GONZALES, Attorney A75-301-562

General, OPINION Respondent. 

On Petitions for Review from Orders of the

Board of Immigration Appeals

Argued and Submitted

January 10, 2006—San Francisco, California

Filed September 13, 2006

Before: A. Wallace Tashima, William A. Fletcher, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge William A. Fletcher

11257
COUNSEL

Marc Van Der Hout, San Francisco, California, for the petitioners.

David V. Bernal and Ernesto H. Molina, US Deptartment of

Justice, Washington, D.C., for the respondent. 

OPINION

W. FLETCHER, Circuit Judge: 

Based on advice of counsel, the Padillas filed an application for asylum shortly before the effective date of the Illegal

Immigration Reform and Immigrant Responsibility Act of

1996 (“IIRIRA” or “Act”). After the Act’s effective date, the

former Immigration and Naturalization Service (“INS”)1 initiated removal proceedings against them. Because these proceedings were initiated after the Act’s effective date, a tenyear period of continuous presence in the United States was

required to qualify for relief from removal rather than the

seven-year period that had previously been required to qualify

for relief from deportation. The Padillas could not satisfy the

ten-year period. 

The immigration judge (“IJ”) denied the Padillas’ application for asylum, and granted them a period of 60 days within

which to depart voluntarily, after which an order of removal

would be entered if they had not departed. In a “streamlined”

order, the Board of Immigration Appeals (“BIA”) affirmed

the decision of the IJ, but reduced the voluntary departure

1The INS was abolished by the Homeland Security Act of 2002, Pub.

L. No. 107-296, 116 Stat. 2135, and the majority of its immigration

enforcement functions were transferred to the Bureau of Immigration and

Customs Enforcement, a part of the Department of Homeland Security.

See Hernandez v. Ashcroft, 345 F.3d 824, 828 n.2 (9th Cir. 2003). 

PADILLA-PADILLA v. GONZALES 11261
period to 30 days. The Padillas moved to reopen before the

BIA based on ineffective assistance of counsel. The BIA

denied the motion. 

We have two consolidated petitions for review before us.

In No. 02-73627, the Padillas petition for review of the BIA’s

streamlined decision. In No. 03-73964, the Padillas petition

for review of the BIA’s denial of their motion to reopen. 

We grant the petition for review in No. 02-73627 and

remand for further proceedings with respect to voluntary

departure. We deny the petition for review in No. 03-73964.

I. Background

Petitioners Jose Juan Padilla-Padilla, Adela Enriquez, and

Guadalupe D. Padilla-Enriquez (“the Padillas”) are a father,

mother, and daughter respectively. They entered the United

States without inspection in March 1989. The Padillas have

two United States citizen sons (and brothers), Jose and Alejandro Padilla-Enriquez, who were born in the United States.

Their ages are 16 and 14 respectively. 

On advice of their counsel, Walter Pineda, the Padillas filed

an application for asylum on January 30, 1997. The effective

date of IIRIRA was approximately two months later, on April

1, 1997. The INS denied the Padillas’ asylum application on

April 20, 1998. The next day, the INS initiated removal proceedings under IIRIRA by serving a notice to appear

(“NTA”). The NTA charged the Padillas as removable pursuant to the Immigration and Nationality Act (“INA”)

§ 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being

aliens present in the United States without having been admitted or paroled. On October 7, 1998, the Padillas conceded

removability before an IJ and renewed their application for

asylum. 

On January 7, 1999, the Padillas moved to terminate

removal proceedings, arguing that they should be in deporta11262 PADILLA-PADILLA v. GONZALES
tion proceedings instead. Prior to IIRIRA, aliens were placed

in either deportation proceedings or exclusion proceedings.

IIRIRA combined these two proceedings into a single proceeding, now called removal. See Vasquez-Zavala v. Ashcroft,

324 F.3d 1105, 1107 (9th Cir. 2003). Aliens placed in deportation proceedings under pre-IIRIRA law could seek relief

from deportation through a request for suspension of deportation. See id.; see also INA § 244(a)(1), 8 U.S.C. § 1254(a)(1)

(repealed 1997). Suspension of deportation was available to

aliens who: (1) were not being deported for certain enumerated offenses; (2) had been present for a continuous period of

seven years; (3) were of good moral character during that

period; and (4) the deportation of whom would result in “extreme hardship” to certain enumerated parties. Id. Had the

Padillas been placed in deportation proceedings prior to the

effective date of IIRIRA, they almost certainly would have

been able to satisfy the requirement of seven years’ continuous presence. 

IIRIRA replaced suspension of deportation with cancellation of removal. The requirements for cancellation of removal

under IIRIRA are more stringent than the prior requirements

for suspension of deportation. Cancellation of removal is

available to aliens who: (1) have been present for a continuous period of at least ten years; (2) have had good moral character during that period; (3) have not been convicted of

certain enumerated offenses; and (4) the removal of whom

would result in “exceptional and extremely unusual hardship”

to certain enumerated parties. INA § 240A(b), 8 U.S.C.

§ 1229b(b). The Padillas were not eligible for cancellation of

removal because they had not been present for a continuous

period of at least ten years when the NTA was served on April

21, 1998. See 8 U.S.C. § 1229b(b)(1)(A), (d)(1); JimenezAngeles v. Ashcroft, 291 F.3d 594, 597 (9th Cir. 2002). 

The IJ denied the Padillas’ motion to terminate removal

proceedings. The IJ subsequently denied the Padillas’ application for asylum and granted them a 60-day period of voluntary

PADILLA-PADILLA v. GONZALES 11263
departure pursuant to INA § 240B, 8 U.S.C. § 1229c. If the

Padillas did not voluntarily depart within that period, an order

of removal would be entered automatically. Pursuant to its

“streamlining” authority, 8 C.F.R. § 1003.1(e)(4),2 the Board

affirmed the substance of the IJ’s order on September 30,

2002. However, the Board also added a “further order” reducing the voluntary departure period from 60 to 30 days.

II. Standard of Review

When the BIA streamlines, we review the substance of the

IJ’s decision. Falcon Carriche v. Ashcroft, 350 F.3d 845, 855

(9th Cir. 2003) (as amended). We review purely legal claims

de novo. See De Martinez v. Ashcroft, 374 F.3d 759, 761 (9th

Cir. 2004) (as amended). 

III. Petition No. 03-73964

We first address the BIA’s denial of the Padillas’ motion to

reopen based on ineffective assistance of counsel. Based on

the advice of their counsel, Walter Pineda, the Padillas filed

an application for asylum approximately two months before

the effective date of IIRIRA. Competent counsel would have

2When the BIA issued its opinion the applicable regulation was 8 C.F.R.

§ 3.1(a)(7) (2002). Section 3.1(a)(7) later became 8 C.F.R. § 1003.1(a)(7)

(2003). See 68 Fed. Reg. 9824 (Feb. 28, 2003). Another, virtually identical

regulation was also adopted. See 8 C.F.R. § 3.1(e)(4) (2002). This regulation later became 8 C.F.R. § 1003.1(e)(4). See 68 Fed. Reg. 9824 (Feb. 28,

2003). In 2003, in recognition that § 1003.1(a)(7) and § 1003.1(e)(4) were

duplicative, § 1003.1(a)(7) was replaced by § 1003.1(e)(4). Definitions;

Fees; Powers and Authority of DHS Officers and Employees in Removal

Proceedings, 69 Fed. Reg. 44903-01, 44904 (Interim Rule July 28, 2004).

The current version of the regulation appears at 8 C.F.R. § 1003.1(e)(4)

(2004). Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004). The provision of the regulation at issue in this case, 8 C.F.R. § 3.1(a)(7)(iii), is identical to 8 C.F.R. § 1003.1(e)(4)(ii). Because there are no differences

affecting this appeal between the former and current versions, we cite to

the current regulation throughout the opinion. See Barroso v. Gonzales,

429 F.3d 1195, 1201 n.10 (9th Cir. 2005). 

11264 PADILLA-PADILLA v. GONZALES
known that this was a very risky thing for the Padillas to do.

The strategy was to file an application for asylum that would

almost certainly be denied, and then to seek relief from the

deportation order that would follow. The obvious problem

with this strategy was that deportation — and suspension of

deportation — were available only under pre-IIRIRA law. See

Jimenez-Angeles, 291 F.3d at 597. In order to qualify for

deportation and suspension of deportation, the deportation

proceedings had to be initiated before the effective date of

IIRIRA, which was only two months after the Padillas filed

their asylum application. Id. To say the least, it was highly

unlikely that the INS would initiate deportation proceedings

within the requisite period. 

Predictably, the INS never initiated deportation proceedings. Instead, more than a year after the effective date of

IIRIRA, it initiated removal proceedings. As discussed above,

eligibility for cancellation of removal requires ten years of

continuous presence in the United States, rather than the

seven years that had been required for eligibility for suspension of deportation under pre-IIRIRA law. See 8 U.S.C.

§ 1229b(b)(1)(A). The Padillas could not satisfy the ten-year

requirement of § 1229b(b)(1)(A) and were therefore ineligible

for cancellation of removal. 

[1] Mr. Pineda is well known to us and to others. He is currently charged, in a separate proceeding before The State Bar

of California, with twenty-nine counts of incompetence in

representing clients and five counts of moral turpitude.3

Unfortunately for the Padillas, our case law precludes relief

in this proceeding. In Lara-Torres v. Ashcroft, 383 F.3d 968

3

See Gary Rivlin, Dollars and Dreams: Immigrants, as Prey, N.Y.

Times, June 11, 2006 § 3 at 4; Eliza Strickland, The Asylum Trap, Unscrupulous attorneys prey on immigrants seeking green cards with an expensive and fruitless legal scheme. Now 29 Mexicans have joined the

disbarment case against one such lawyer, San Francisco Weekly, May 10,

2006, available at http://www.sfweekly.com/Issues/2006-05-10/news/

featur e.html. 

PADILLA-PADILLA v. GONZALES 11265
(9th Cir. 2004), amended by 404 F.3d 1105 (9th Cir. 2005),

Mr. Pineda gave the same advice he gave to the Padillas to

other aliens, with precisely the same result as in this case. We

held in Lara-Torres that there was no violation of due process. Id. at 976. Because we are bound to follow Lara-Torres,

we deny petition No. 03-73964. 

IV. Petition No. 02-73627

We next address the BIA’s streamlined affirmance of the

IJ’s order of removal and its reduction of the period of voluntary departure from 60 to 30 days. 

A. Jurisdiction

[2] The government argues on three grounds that we lack

jurisdiction. It argues, first, that we have no jurisdiction to

review the BIA’s discretionary decision to reduce the period

of voluntary departure. See INA § 242(a)(2)(B), 8 U.S.C.

§ 1252(a)(2)(B),4 and INA § 240B(f), 8 U.S.C. § 1229c(f).5

The government acknowledges that we have jurisdiction to

review legal and constitutional issues, but argues that the

Padillas challenge an exercise of unreviewable discretionary

authority. See 8 U.S.C. § 1252(a)(2)(D) (“Nothing in subparagraph (B) or (C), or in any other provision of this chapter

(other than this section) which limits or eliminates judicial

review, shall be construed as precluding review of constitu4

In pertinent part 8 U.S.C. § 1252(a)(2)(B) provides: 

Notwithstanding any other provision of law (statutory or nonstatutory), . . . and except as provided in subparagraph (D) . . . no

court shall have jurisdiction to review— 

(i) any judgment regarding the granting of relief under section . . . 1229c . . . of this title. 

5

In pertinent part 8 U.S.C. § 1229c(f) provides: 

No court shall have jurisdiction over an appeal from denial of a

request for an order of voluntary departure under subsection (b)

of this section. 

11266 PADILLA-PADILLA v. GONZALES
tional claims or questions of law raised upon a petition for

review filed with an appropriate court of appeals in accordance with this section.”); Notash v. Gonzales, 427 F.3d 693,

695-96 (9th Cir. 2005). We disagree. The Padillas do not

challenge the manner in which discretionary authority is exercised. See Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th

Cir. 2002) (as amended). Rather, they challenge the existence

of the authority. They contend that when affirming in a

streamlined order, the BIA does not have the authority to

change any aspect of the IJ’s decision, including the length of

a voluntary departure period. We have jurisdiction to decide

this question. See Zolotukhin v. Gonzales, 417 F.3d 1073,

1075 n.2 (9th Cir. 2005). 

[3] The government argues, second, that we have no jurisdiction because the Padillas failed to exhaust their administrative remedies before the BIA. We may entertain a petition for

review only if “the alien has exhausted all administrative remedies available as of right.” 8 U.S.C. § 1252(d)(1). We have

interpreted the term “as of right” to require “an alien to

exhaust his or her claims by raising them on direct appeal to

the BIA.” Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir. 2004)

(emphasis in original). The Padillas assert the following three

claims, none of which was argued to the BIA. 

[4] The Padillas’ first claim is a violation of constitutional

due process. They point out that the practical effect of the

removal provisions of IIRIRA is that some families are split

up when alien members of the family are removed and citizen

members are permitted to stay. They point out that the hardship thus imposed on aliens who have been in the country for

less than ten years is categorically irrelevant to the removal

decision. They contend that this categorical refusal to consider hardship imposed violates due process. In order to provide the relief requested by the Padillas, the BIA would have

to find either the ten-year requirement of § 1229b(b)(1)(A) or

the “stop-time” rule of § 1229b(d)(1) unconstitutional. The

BIA does not have jurisdiction to determine the constitutionPADILLA-PADILLA v. GONZALES 11267
ality of the statutes it administers. Liu v. Waters, 55 F.3d 421,

425 (9th Cir. 1995). Because the BIA could not have

addressed the Padillas’ constitutional due process claim, the

Padillas were not required to exhaust the issue before the

BIA. Id. at 426; Garcia-Ramirez v. Gonzales, 423 F.3d 935,

938 (9th Cir. 2005). 

[5] The Padillas’ second claim is that these same provisions

violate international law. In In re Medina, 19 I. & N. Dec.

734, 742, 746 (BIA 1988), the BIA held that it did not have

jurisdiction to consider international law claims premised on

treaty or customary international law. We have agreed with

the BIA’s conclusion that it lacks jurisdiction over claims

arising under international law. See Galo-Garcia v. INS, 86

F.3d 916, 918 (9th Cir. 1996) (holding that the BIA does not

have jurisdiction over customary international law claims);

see also Bradvica v. INS, 128 F.3d 1009, 1014 (7th Cir. 1997)

(same); cf. Beharry v. Ashcroft, 329 F.3d 51, 59 (2d Cir.

2003). Since the BIA did not have jurisdiction to consider this

claim, the Padillas were not required to exhaust it. 

[6] The Padillas’ third claim is that the BIA acted improperly in reducing the period of voluntary departure from 60 to

30 days in a streamlined case. “We do not require an alien to

exhaust administrative remedies on legal issues based on

events that occurred after briefing to the BIA has been completed.” Alcaraz, 384 F.3d at 1158 (emphasis in original); see

Castillo-Villagra v. INS, 972 F.2d 1017, 1023-24 (9th Cir.

1992). The Padillas challenge the “further order” contained in

the BIA’s streamlined affirmance of the IJ’s decision. This

order was issued after briefing. We do not believe that the

Padillas should have been required to anticipate this ruling in

their briefing. At the time of its decision in the Padillas’ case,

the BIA was still following Matter of Chouliaris, 16 I. & N.

Dec. 168 (BIA 1977), under which a voluntary departure

period of more than 30 days was reduced to 30 days if the

period had run during the pendency of the appeal to the BIA.6

6Matter of Chouliaris was decided under the voluntary departure

scheme that existed under pre-IIRIRA law. In In re A- M-, 23 I. & N. Dec.

11268 PADILLA-PADILLA v. GONZALES
But petitioners are not arguing before us that the BIA does not

have the authority to reduce the period to 30 days under Matter of Chouliaris. Rather, they are arguing that the BIA does

not have the authority to reduce the period in a streamlined

affirmance. We are unwilling to hold that the petitioners

should have anticipated in their briefing to the BIA that the

agency would violate its own streamlining regulation. 

[7] The government argues, third, that the Padillas should

have filed a motion to reconsider7 in the BIA before filing a

petition for review in this court. Whether to grant a motion to

reconsider is within the discretion of the BIA. See 8 C.F.R.

§ 1003.2(b); INA § 240(c)(5), 8 U.S.C. § 1229a(c)(5);

Noriega-Lopez, 335 F.3d at 881. The failure to request such

discretionary relief does not deprive us of jurisdiction.

737, 743 (BIA 2005), the BIA changed its practice, pointing out that its

decision in Chouliaris had been based on the fact that an IJ acting under

pre-IIRIRA law was permitted to grant voluntary departure periods of any

length. Under IIRIRA, by contrast, an IJ can grant a voluntary departure

period of no longer than 60 days. The BIA held in In re A- M- that, in light

of IIRIRA, it would no longer automatically reduce voluntary departure

periods to 30 days. Instead, it would reinstate any period of voluntary

departure granted by the IJ “unless there are reasons in a particular case

for reducing the period of voluntary departure initially granted.” Id. at 744.

The Padillas’ case was decided after the effective date of IIRIRA (and thus

after the reason for the Chouliaris rule had disappeared), but before the

BIA’s decision in In re A- M-. 

7The government argues in its brief that the Padillas should have sought

a motion to reopen, but it likely meant to argue that they should have

sought a motion to reconsider. A motion to reopen is appropriate where

“new facts” are presented, and must be made within 90 days of the final

agency determination. 8 C.F.R. § 1003.2(c). A motion to reconsider is

appropriate for “errors of fact or law” relating to the prior Board’s decision, and must be made within 30 days after the mailing of the Board’s

decision. 8 C.F.R. § 1003.2(b). Because no “new facts” arose after the

Board’s decision, the only form of discretionary review for which the

Padillas would have been eligible is a motion to reconsider. See NoriegaLopez v. Ashcroft, 335 F.3d 874, 880-81 (9th Cir. 2003); Iturribarria v.

INS, 321 F.3d 889, 895-96 (9th Cir. 2003). 

PADILLA-PADILLA v. GONZALES 11269
Alcaraz, 384 F.3d at 1160; see Sun v. Ashcroft, 370 F.3d 932,

942 (9th Cir. 2004). 

[8] Finally, we note that we may prudentially require petitioners to exhaust administrative remedies in order to develop

a proper record, prevent deliberate bypass of the administrative scheme, or allow the agency to correct its own mistake.

See Alcaraz, 384 F.3d at 1160; see also Noriega-Lopez, 335

F.3d at 881. Apart from allowing the BIA to correct its own

mistake, the other factors do not weigh in favor of requiring

the Padillas to exhaust. The record is complete, as the only

issues the Padillas raise are legal, and the Padillas do not

appear to be trying to bypass the administrative scheme. See

Huang v. Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2005) (as

amended). Furthermore, a motion to reconsider before the

BIA would now be untimely. See 8 C.F.R. § 1003.2(b). Under

these circumstances, we will not require prudential exhaustion. See Alcaraz, 384 F.3d at 1160. 

B. Due Process

The Padillas contend that the practical effect of removal is

that some families are split up, with the removed members of

the family returning to their country and the non-removed

members staying in the United States. They contend that the

importance of family unity is such that the combined effect of

the ten-year requirement for eligibility for cancellation of

removal in § 1229b(b)(1)(A) and the stop-time rule of

§ 1229b(d)(1) (initiation of removal proceeding by service of

NTA stops accrual of time) violates constitutional substantive

due process. 

[9] The Supreme Court has stated that “ ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” Fiallo v. Bell,

430 U.S. 787, 792 (1977) (citing Oceanic Navigation Co. v.

Stranahan, 214 U.S. 320, 339 (1909)). The Court went on to

note that “[o]ur cases ‘have long recognized the power to

11270 PADILLA-PADILLA v. GONZALES
expel or exclude aliens as a fundamental sovereign attribute

exercised by the Government’s political departments largely

immune from judicial control.’ ” Id. at 792 (citing Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953)). The Court held

that so long as Congress legislates with “a ‘facially legitimate

and bona fide reason’ the courts will neither look behind the

exercise of that discretion, nor test it by balancing its justification . . . .” Id. at 794-95 (citing Kleindienst v. Mandel, 408

U.S. 753, 770 (1972)). 

[10] Congress has provided for individualized hearings

before an IJ to determine hardship on family members resulting from removal for cases satisfying the eligibility criteria

for cancellation of removal. See 8 U.S.C. § 1229b(b). Congress has also specifically provided that cancellation cannot

be granted unless the alien has been continuously present in

the United States for at least ten years. 8 U.S.C.

§ 1229b(b)(1)(A). We have broadly upheld time presence

requirements. See Urbano de Malalaun v. INS, 577 F.2d 589,

594 (9th Cir. 1978). The Padillas claim that because the

“right” to remain with “immediate family . . . ranks high

among the interests of the individual,” they have the right to

an individual determination of hardship. Landon v. Plasencia,

459 U.S. 21, 34 (1982); see also Moore v. City of East Cleveland, 431 U.S. 494, 499-500 (1977). The Padillas point out

that although the stop-time rule of § 1229b(d)(1) has stopped

the accrual of time for purposes of the ten-year requirement

as of the date of service of the NTA on April 21, 1998, they

have now been present in the United States for over seventeen

years. They contend that in this circumstance they are constitutionally entitled to have their hardship considered as part of

the decision whether they should be removed. 

So long as Congress has a “facially legitimate and bona

fide” reason for the lines it has drawn, the judiciary will not

interfere. See Fiallo, 430 U.S. at 794. The legislative history

of IIRIRA shows that one of its purposes was to expedite the

removal of aliens. See S. Rep. No. 104-249, at 7 (1996)

PADILLA-PADILLA v. GONZALES 11271
(“Aliens who violate U.S. immigration law should be

removed from this country as soon as possible.”). Under preIIRIRA law, aliens continued to accrue time toward the satisfaction of the then-applicable seven-year requirement even

after the initiation of deportation proceedings. The accrual of

time stopped only when they applied for suspension of deportation. Ram v. INS, 243 F.3d 510, 513 (9th Cir. 2001). Aliens

thus had a substantial incentive to delay proceedings, and to

delay applying for suspension of deportation, in order to satisfy the seven-year requirement. The stop-time provision of

§ 1229b(d)(1), adopted as part of IIRIRA, removes this incentive by stopping the accrual of time upon the service of an

NTA. 

[11] The combination of Congress’ authority to specify a

period of time before an alien becomes eligible for cancellation of removal, and its rationale for adopting the stop-time

rule contained in § 1229b(d)(1), is enough to satisfy the due

process clause. 

C. International Law

[12] The Padillas also contend that the combined practical

effect of the ten-year requirement and the stop-time rule on

family unity violates international law. The Padillas point to

various treaties, declarations, and customary international law

norms which generally recognize rights of families. But they

are unable to point to any binding obligation under international law that has been violated. See, e.g., Sosa v. AlvarezMachain, 542 U.S. 692, 734-35 (2004) (stating that the Universal Declaration of Human Rights and the International

Covenant on Civil and Political Rights do not impose obligations on the United States because neither is self-executing);

see also Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1011-

13 (9th Cir. 2005) (holding that the hardship standard of 8

U.S.C. § 1229b(b)(1)(D) as interpreted by the BIA does not

violate customary international law). The government, on the

other hand, points to the statutory framework that clearly pro11272 PADILLA-PADILLA v. GONZALES
vides that in order to be eligible for cancellation from

removal, an immigrant must have been continuously present

in the United States for a period of ten years prior to the service of an NTA. 8 U.S.C. § 1229b(b)(1)(A), (d)(1). 

We therefore conclude that the government has not violated

any binding obligation under international law by failing to

consider the hardship imposed on the Padillas in making its

removal decision. 

D. Reduction of Voluntary Departure Period

Finally, the Padillas contend that the BIA did not have the

authority, in a “streamlined” affirmance, to reduce the voluntary departure period granted by the IJ from 60 to 30 days.

The IJ granted the Padillas voluntary departure for a 60-day

period. The BIA then affirmed without opinion in a streamlined decision pursuant to 8 C.F.R. § 1003.1(e)(4). However,

the BIA did not affirm the entirety of the IJ’s decision. As

part of its affirmance, the BIA issued what it called a “further

order” reducing the period of voluntary departure from 60 to

30 days. 

The full BIA order is as follows: 

ORDER: 

PER CURIAM. The Board affirms, without opinion, the results of the decision below. The decision

below is, therefore, the final agency determination.

See 8 C.F.R. § 3.1(a)(7). 

FURTHER ORDER: Pursuant to the Immigration

Judge’s order and conditioned upon compliance with

conditions set forth by the Immigration Judge and

the statute, the alien is permitted to voluntarily

depart from the United States, without expense to the

Government, within 30 days from the date of this

PADILLA-PADILLA v. GONZALES 11273
order or any extension beyond that time as may be

granted by the district director. See section 240B(b)

of the Immigration and Nationality Act; 8 C.F.R.

§ 240.26(c), (f). In the event the alien fails to so

depart, the alien shall be removed as provided in the

Immigration Judge’s order. 

NOTICE: If the alien fails to depart the United

States within the time period specified, or any extensions granted by the district director, the alien shall

be subject to civil penalty of not less than $1,000 and

not more than $5,000, and shall be ineligible for a

period of 10 years for any further relief under section

240B and sections 240A, 245, 248, and 249 of the

Immigration and Nationality Act. See section

240B(d) of the Act. 

[13] We defer to an agency’s interpretation of its own regulations. Salehpour, 761 F.2d at 1445. However, where that

interpretation is “plainly erroneous or inconsistent with the

regulation[ ]” we will not so defer. Id. The BIA must follow

its own regulations. Ramon-Sepulveda v. INS, 743 F.2d 1307,

1310 (9th Cir. 1984); see also Andriasian v. INS, 180 F.3d

1033, 1046 (9th Cir. 1999) (“[W]e note that we are not contesting the [BIA’s] interpretation of the governing statute . . . .

Rather, our decision is based on [the BIA’s] failure to apply

its own construction of the statute as embodied in the applicable regulations.”). The BIA’s failure to follow its own regulation constitutes an abuse of discretion. Andriasian, 180 F.3d

at 1046; Mejia v. Ashcroft, 298 F.3d 873, 878 (9th Cir. 2002)

(“The BIA does not have the discretion to misapply the law,

and it abuses its discretion when it does.”). 

[14] The streamlining regulation allows one member of the

BIA to affirm without opinion, specifying that it affirms the

“result” reached by the IJ, and prescribing the precise language to be used. See 8 C.F.R. § 1003.1(e)(4). The regulation

could hardly be clearer. In pertinent part, it provides: 

11274 PADILLA-PADILLA v. GONZALES
(4) Affirmance without opinion. 

. . . . 

(ii) If the Board member determines that

the decision should be affirmed without

opinion, the Board shall issue an order that

reads as follows: "The Board affirms, without opinion, the result of the decision

below. The decision below is, therefore, the

final agency determination. See 8 CFR

1003.1(e)(4).” An order affirming without

opinion, issued under authority of this provision, shall not include further explanation

or reasoning. Such an order approves the

result reached in the decision below; it does

not necessarily imply approval of all of the

reasoning of that decision, but does signify

the Board’s conclusion that any errors in

the decision of the immigration judge or the

Service were harmless or nonmaterial. 

8 C.F.R. § 1003.1(e)(4)(ii) (emphasis added). 

[15] The first paragraph of the BIA’s order in the Padillas’

case recites verbatim the prescribed language. However, the

second paragraph, labeled “further order,” goes beyond what

is authorized by the regulation. It both changes the “result”

reached by the IJ and uses language that goes beyond that

mandated in the regulation. 

Another provision of the streamlining regulation reinforces

our reading of 8 C.F.R. § 1003.1(e)(4)(ii). That provision

specifies a limited number of additional orders that may be

entered as part of a streamlining decision. It provides: 

(e) Case management system. 

PADILLA-PADILLA v. GONZALES 11275
. . . . 

(2) Miscellaneous dispositions. A single

Board member may grant an unopposed

motion or a motion to withdraw an appeal

pending before the Board. In addition, a

single Board member may adjudicate a Service motion to remand any appeal from the

decision of a Service officer where the Service requests that the matter be remanded to

the Service for further consideration of the

appellant’s arguments or evidence raised on

appeal; a case where remand is required

because of a defective or missing transcript;

and other procedural or ministerial issues as

provided by the case management plan. 

8 C.F.R. § 1003.1(e)(2). None of the “miscellaneous dispositions” specified in the regulation include changing the length

of a voluntary departure period. Further, the “case management plan” does not include any provision that would cover

the “further order” entered in this case. See id.; see also 8

C.F.R. § 1003.1(e)(5).

[16] We therefore hold that because the BIA issued a

streamlined order, it was required to affirm the entirety of the

IJ’s decision, including the length of the voluntary departure

period. The only remaining question concerns the effect of

our holding. The voluntary departure order and the running of

the 60-day period were stayed during the pendency of the

Padillas’ appeal to the BIA. Matter of Chouliaris, 16 I. & N.

Dec. 168 (BIA 1977) (“Timely filing of an appeal stays the

execution of the decision of the immigration judge during the

pendency of the appeal, and also tolls the running of the voluntary departure authorization.”). Until the BIA’s order was

issued, the IJ’s grant of voluntary departure was still in effect

and the period had not yet begun to run. 

11276 PADILLA-PADILLA v. GONZALES
We are not sure, however, whether the Padillas can still

have the benefit of their voluntary departure order. In

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

1988) (en banc), decided before the enactment of IIRIRA, we

held that, even in the absence of a stay, an alien’s period of

voluntary departure does not begin to run until after we issue

our mandate. After the enactment of IIRIRA, we revisited the

issue in Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1168

(9th Cir. 2003), and held that the voluntary departure period

starts to run when the BIA issues its decision. Then in El

Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir. 2003), we

held that we have the equitable power to grant a stay of voluntary departure if the motion for such a stay is filed within the

voluntary departure period. Finally, in Desta v. Ashcroft, 365

F.3d 741, 749-50 (9th Cir. 2004), we held that a motion to

stay removal should be construed as including a motion to

stay voluntary departure. 

[17] We decided Zazueta-Carrillo (overruling ContrerasAragon) well after the BIA’s decision in the Padillas’ case.

Relying on Contreras-Aragon, the Padillas have never moved

either to stay voluntary departure or to stay removal. In a case

in which the petitioners were in a similar position to the Padillas, we held that petitioners had not exhausted their administrative remedies when they had not presented to the BIA the

question whether, in light of Contreras-Aragon, they “should

be deemed to have overstayed their period of voluntary departure.” Garcia v. Ashcroft, 368 F.3d 1157, 1160 (9th Cir.

2004). In the circumstances of this case, we think the best

course is to remand to the BIA to allow it to determine that

question. We note that in two unpublished opinions the BIA

has assumed that Contreras-Aragon applies to petitioners, like

the Padillas, whose voluntary departure periods expired

before we decided Zazueta-Carrillo. See In re Mohammad,

2003 WL 23508433 (BIA Nov. 18, 2003) (unpublished); In re

Zodhi, 2003 WL 23270124 (BIA Oct. 28, 2003) (unpublished).

PADILLA-PADILLA v. GONZALES 11277
Conclusion

We grant the petition for review in No. 02-73627 and

remand for further proceedings with respect to voluntary

departure. We deny the petition for review in No. 03-73964.

11278 PADILLA-PADILLA v. GONZALES