Rene Adan Contreras-Aragon v. Immigration and Naturalization Service

852 F.2d 1088, 1988 U.S. App. LEXIS 9658

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 1988
• Docket: 85-7392
• Status: Published

Opinions

HUG, Circuit Judge:

We took this case en banc to resolve an issue concerning the effect of affirming an order of deportation that also provides for voluntary departure. The Board of Immigration Appeals (“BIA”) found Contreras-Aragon deportable and granted the alternative discretionary relief of 30 days’ voluntary departure. A panel of our court affirmed the order of the BIA, but held that the voluntary departure period allowed by the BIA had expired and was no longer available to Contreras-Aragon. We voted sua sponte to take the case en banc to determine whether the affirmance of the BIA order permitted Contreras-Aragon to voluntarily depart during the pendency of his petition and the 30-day period following the issuance of our mandate affirming the BIA. We hold that it does.

I.

The panel’s decision reversed a practice that we have followed for many years without objection by the Immigration and Naturalization Service (“INS”). The long-standing practice was to permit an alien afforded the right of voluntary departure by the BIA the opportunity to depart voluntarily until a fixed time after the issuance of our mandate affirming the order of deportation. More precisely, the period did not end until the number of days after the mandate equal to the number of days for voluntary departure set forth in the BIA’s order. In some cases, we elucidated this practice in our opinions; in others, we merely assumed that the alien would be afforded this opportunity. The INS acknowledges that it has long followed the practice of allowing aliens originally granted voluntary departure to depart voluntarily until a fixed time after the issuance of our mandate. However, the INS maintains that it has followed this practice only when the alien filed a petition for review within the voluntary departure period originally granted. The INS concedes that it has never announced or published this limitation, nor has it communicated this limitation to aliens at the time of the deportation order and the grant of voluntary departure. The decisions of our court have never made this distinction.

The discretionary award of voluntary departure is significant for several reasons. First, it allows the alien to avoid the stigma of compulsory ejection. Second, it permits the alien to select his or her own destination. But, most importantly, the grant of voluntary departure facilitates the possibility of return to the United States. Tzantarmas v. United States, 402 F.2d 163, 165 n. 1 (9th Cir.1968), cert. denied, 394 U.S. 966, 89 S.Ct. 1312, 22 L.Ed.2d 569 (1969); 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 7.2a, at 7-19 (1987). An alien who voluntarily departs may return immediately, for example, as the beneficiary of an immigrant visa based on the marriage to a United States citizen. Conversely, a deported alien must seek special permission to return to the United States, see 8 U.S.C.A. § 1182(a)(17) (West Supp. 1987), and may face criminal penalties for the failure to do so, 8 U.S.C. § 1326 (1982).

II.

Petitioner, Contreras-Aragon, is a citizen of El Salvador who entered the United States on April 10, 1983. He was subsequently apprehended and charged with de-portability for entry without inspection under 8 U.S.C. § 1251(a)(2) (1982). At his deportation hearing, held June 14, 1983, petitioner conceded deportability; he also sought asylum (see 8 U.S.C. § 1158(a) (1982)) and withholding of deportation (see 8 U.S.C. § 1253(h) (1982)). The immigration judge (“U”) denied both requests and ordered petitioner deported.

Petitioner appealed the ruling of the IJ to the BIA. On June 4, 1985, the BIA affirmed the IJ’s decision, with the exception that it granted petitioner 30 days in which to voluntarily depart from the United States. See 8 U.S.C. § 1254(e) (1982).

On July 15, 1985, Contreras-Aragon filed a petition for review of the BIA’s decision with this court. July 15 fell within the six-month period for filing a petition for review prescribed by 8 U.S.C. § 1105a(a)(l) (1982), but it was 41 days after the entry of the BIA’s deportation order, which included the 30-day voluntary departure provision.

Contreras-Aragon’s petition to this court challenged the BIA’s denial of asylum and its refusal to withhold deportation. His petition also asked the court to “reinstate” the BIA’s grant of voluntary departure in the event the court chose to affirm the BIA’s deportation order.

The panel upheld the BIA’s decision refusing to grant both asylum and withholding of deportation. Contreras-Aragon v. INS, 789 F.2d 777, 778 (9th Cir.1986). While we have serious reservations about that part of the decision, we do not reach the merits of those issues.¹ This en banc review focuses on the panel’s refusal to “reinstate” the BIA’s grant of voluntary departure or, viewed more accurately, its retroactive termination of the alien’s right of voluntary departure. The panel refused to “reinstate” after concluding that the voluntary departure period had expired prior to the date of its decision. See Contreras-Aragon, 789 F.2d at 779. The panel implied that a voluntary departure period runs from the time the award is initially granted; it then expires and is unaffected by the alien’s appeal of the deportation order. The holding conflicts with a line of Ninth Circuit cases in which this court has expressly provided that when timely review of the deportation order is sought the voluntary departure period originally granted by the BIA does not terminate until after the issuance of the mandate affirming the BIA. See Benitez-Mendez v. INS, 760 F.2d 907, 910 (9th Cir.1983) (as amended 1985); Abedi-Tajrishi v. INS, 752 F.2d 441, 444 (9th Cir.1985); Shahla v. INS, 749 F.2d 561, 563 (9th Cir.1984); De Reynoso v. INS, 627 F.2d 958, 960 (9th Cir.1980); Khalil v. INS, 457 F.2d 1276, 1278 (9th Cir.1972); accord Aiyadurai v. INS, 683 F.2d 1195, 1201 (8th Cir.1982).

The analysis for this result has not been clearly expressed, and there is some confusion concerning the operation of the voluntary departure provision in a deportation order. The use of the word “reinstate,” with reference to voluntary departure originally granted by the BIA, creates part of the problem. As we view the matter, in affirming the order of the BIA, we affirm the order in total, including its grant of voluntary departure, the period for which does not expire until after the date the order of deportation becomes operative by the issuance of our mandate. We are not “reinstating” in the sense that we are exercising any discretion properly exercised by the BIA; rather, we are simply affirming the order of deportation with its provision for alternative discretionary relief.

III.

Section 106(a) of the Act, 8 U.S.C. § 1105a(a) (1982), provides for judicial review of final orders of deportation. It vests exclusive jurisdiction for such review in the courts of appeal. The Supreme Court has held that this jurisdiction extends to all matters decided in the course of a deportation proceeding, including determinations on requests for discretionary relief. Foti v. INS, 375 U.S. 217, 229, 232, 84 S.Ct. 306, 313, 315, 11 L.Ed.2d 281 (1963). The result of the deportation hearing, including the discretionary determinations, is one final order of deportation reviewable by the courts of appeals.

The hearings on deportability and on an application for discretionary relief have, as a matter of traditional uniform practice, been held in one proceeding before the same special inquiry officer, resulting in one final order of deportation.

Id. at 223, 84 S.Ct. at 310 (emphasis added). It is clear that a determination concerning voluntary departure is one of those determinations made during the deportation hearing that form a part of the final order of deportation, id. at 229, 84 S.Ct. at 313. The Court took special pains to point out that “determinations of deportability” are distinguished from the broader category of “final orders of deportation,” which includes other determinations in the deportation proceedings. See id. at 228, 84 S.Ct. at 313. Thus, it is important to emphasize that we are here concerned with one final order of deportation that includes a determination concerning voluntary departure.

The jurisdictional section also provides for an automatic stay of deportation upon the filing of a petition for review. See 8 U.S.C. § 1105a(a)(3) (1982). By providing an automatic stay, Congress eliminated the need for aliens to seek discretionary relief from deportation during the pendency of the petition for review in our court. We cannot conceive that Congress made such provision but intended to require aliens granted voluntary departure to seek repeated extensions of the voluntary departure period from the district director, in order to preserve the award of voluntary departure until our final determination on the deportation order. Rather it seems evident to us that the right of voluntary departure remains in effect throughout the period of our review and for whatever additional period the BIA afforded the alien in the order under review.

An unqualified affirmance of the order of deportation consequently entails approval of the grant of voluntary departure. This approach is consistent with Foti. There, the Supreme Court was faced with the question of whether a refusal by the Attorney General to grant a suspension of deportation is “one of those ‘final orders of deportation’ of which direct review by Courts of Appeals is authorized under § 106(a) of the Act.” Foti, 375 U.S. at 221, 84 S.Ct. at 309. Section 106(a) vests jurisdiction in the court of appeals for review of “all final orders of deportation ... made against aliens ... pursuant to administrative proceedings under section 242(b) of this Act_” See 8 U.S.C. § 1105a(a). Though by its own terms the grant of jurisdiction is limited to orders arising out of section 242 deportation proceedings, the Court extended the jurisdiction to include decisions regarding discretionary relief. Foti, 375 U.S. at 229, 84 S.Ct. at 313.

Not only does the rule we adopt conform to the Supreme Court’s analysis in Foti, it is also consistent with our past treatment of the question. See, e.g., Abedi-Tajrishi, Shahla, De Reynoso, Khalil, and Benitez-Mendez. In all of those cases, we affirmed the final order of deportation including the award of voluntary departure previously granted by the BIA; upon our affirmance, the number of days for voluntary departure initially afforded by the BIA commenced to run.

The INS claims that the approach we adopt exceeds our authority by usurping the discretion delegated to the INS by the Attorney General. Contrary to the INS’s assertions, the approach falls squarely within our function as a judicial body. We do not affirmatively grant voluntary departure, but only review the grant previously made by the INS. Our authority to review this discretionary relief is beyond challenge.² In reviewing the grant, we are simply reviewing what is before us, following Foti’s guidance that review of a final order of deportation encompasses review of concomitant discretionary relief. Naturally, the voluntary departure period commences when our mandate upholding the grant of voluntary departure issues.

IV.

There are two other suggested approaches to govern when the period for voluntary departure commences and ends. We review these in detail to point out their weaknesses.

A. The Panel’s Approach.

The panel’s decision concluded that the order granting voluntary departure expired 30 days after the entry of the BIA’s deportation order. The panel apparently believed that to allow the alien to avail himself of his original voluntary departure period commencing from the entry of our mandate affirming the deportation order, would be tantamount to granting a new voluntary departure date, thus invading the discretion reserved for the Attorney General and his designees.

Realistically, the panel’s decision would force the alien to choose between voluntary departure and taking an appeal, because the period of voluntary departure would expire before the appellate review could possibly be concluded. The panel's approach would condition the grant of voluntary departure on the alien’s relinquishment of his right to judicial review. The panel apparently recognized this, because it quoted with approval a statement from one of the BIA’s unpublished decisions that “[t]he purpose of authorizing voluntary departure in lieu of deportation is to effect the alien’s prompt departure without further trouble to the Service.” Contreras-Aragon, 789 F.2d at 779 n. 3 (quoting Wang Ching Fui (August 21, 1969 unpublished decision)). This raises the serious question of whether voluntary departure can be used as an enticement to induce the alien to forego judicial review.

In answering this question, it is important to distinguish two types of voluntary departure that may be granted under the Act. The first is authorized by section 242(b) of the Act, 8 U.S.C. § 1252(b) (1982). This section vests the Attorney General with discretion to award voluntary departure in lieu of initiating deportation proceedings. The Attorney General has delegated this authority to district directors, district officers who are in charge of investigations, officers in charge, and chief patrol agents. 8 C.F.R. § 242.5(a) (1987). This procedure has been called a “rough immigration equivalent of a guilty plea,” in that the alien knowingly waives his rights to a hearing in exchange for the certainty of being able to depart voluntarily, rather than under an order of deportation. D.A. Martin, Major Issues in Immigration Law 72 (Federal Judicial Center 1987). The INS requires the alien to sign a Voluntary Departure Form 1-274, in which he waives the right to a deportation hearing and all alternative forms of relief. See Perez-Funez v. District Director, I.N.S., 619 F.Supp. 656, 658 (C.D.Cal.1985). An application for voluntary departure under this section must be made prior to the commencement of the deportation hearing and no appeal lies from the denial of the application under this section; however, the denial does not prejudice a request for voluntary departure under other provisions of the law. 8 C.F.R. § 242.5(b) (1987).

The second provision authorizing a grant of voluntary departure is found in section 244(e) of the Act, 8 U.S.C. § 1254(e) (1982). That section grants the Attorney General discretion to award voluntary departure to aliens who are engaged in deportation proceedings. The delegation and implementation of that authority is provided for in 8 C.F.R. §§ 242.17(b), 244.1, and 244.2 (1987). It is apparent from these regulations that the IJ or the BIA may initially grant the voluntary departure, but an extension of the departure period is within the sole jurisdiction of the district director.

The distinction between the voluntary departure authorized under sections 242(b) and 244(e) of the Act is vital. It may well be the purpose of section 242(b) to encourage the alien to depart before institution of deportation proceedings “without further trouble to the Service.” Voluntary departure under section 242(b) is available to an alien who knowingly waives his right to a deportation hearing in exchange for a guarantee of being able to depart voluntarily.

The grant of voluntary departure with which we are concerned — that authorized under section 244(e) — presents an entirely different situation. The alien has sought a hearing and has requested alternative discretionary relief; he has waived nothing. Yet under the panel’s interpretation, the BIA’s order amounts to the following:

Contreras-Aragon is granted the right to voluntarily depart, provided he does not seek judicial review.

Could such an order be sustained?

Courts have long recognized that a judicial officer may not exact a price for the taking of an appeal. See North Carolina v. Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969); Worcester v. Commissioner, 370 F.2d 713, 718 (1st Cir.1966); and Short v. United States, 344 F.2d 550, 552 (D.C.Cir.1965). As the Supreme Court said in the context of criminal proceedings, “the imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal ... would be ... a violation of due process of law.... A defendant’s exercise of a right of appeal must be free and unfettered....” Pearce, 395 U.S. at 724, 89 S.Ct. at 2080. The statutory provision for appeal from deportation orders furnishes no less of a right. See United States v. Mendoza-Lo pez, — U.S. -, 107 S.Ct. 2148, 2155, 95 L.Ed.2d 772 (1987) (referring to an alien’s “right to have the disposition in a deportation hearing reviewed in a judicial forum”). Moreover, we have held that the INS may not condition voluntary departure upon the relinquishment of a protected right. See, e.g., Israel v. INS, 785 F.2d 738, 742 n. 8 (9th Cir.1986) (implicated privacy rights prevent the INS from conditioning the grant of voluntary departure on the alien’s promise not to marry a United States citizen within that period).

We would drastically depart from these principles were we to sanction a policy which effectively forced the alien to choose between exercising an award of voluntary departure and pursuing judicial review. Forcing the alien to abandon the possibility of voluntary departure in order to seek review of the BIA’s decision places too dear a price on the right to judicial review, a price which we cannot condone.

The Second Circuit expressed similar sentiments in Ballenilla-Gonzalez v. INS, 546 F.2d 515 (2d Cir.1976), cert. denied, 434 U.S. 819, 98 S.Ct. 58, 54 L.Ed.2d 75 (1977), where it stated,

[Discretion [to grant voluntary departures] should not be used by the Board to insulate its decisions and procedures from constitutional or statutory challenge. If an alien has a facially meritorious claim going to the validity of a deportation order, he or she should not be discouraged from seeking review by the offer of voluntary departure on terms that will evaporate if the appeal is pursued. The result would be to penalize an alien in the bona fide, nonfrivolous exercise of a constitutional right.

Id. at 521.³

The BIA itself has avoided placing the alien in the dilemma of choosing between the right to an administrative appeal and the IJ's grant of voluntary departure. The BIA has held that a timely appeal of the IJ’s decision to the BIA tolls the running of the departure period. Matter of Villegas Aguirre, 13 I. & N. Dec. 139, 140 (BIA 1969). A subsequent decision of the BIA stated that the Aguirre holding “was designed to guard against any possibility that the taking of an appeal might result in the loss of the privilege of voluntary departure _ The alien in deportation proceedings must be assured that he will not risk losing a grant of voluntary departure by filing an appeal from an adverse decision of an immigration judge.” Matter of Chouliaris, 16 I. & N. Dec. 168, 169-70 (BIA 1977).⁴

If the BIA’s order granting voluntary departure were conditional upon the alien waiving his or her right of judicial review, it would not only be inconsistent with the policy on appeals from the IJ to the BIA, but it would amount to an abuse of discretion by requiring the alien to waive a fundamental right. We cannot endorse the panel’s approach because it effectively leads to this same result.

B. The INS Position.

Under the “tolling”⁵ policy of the INS, petitioning for judicial review within the period for voluntary departure preserves the alien’s right to voluntarily depart upon the outcome of the judicial review; however, this right is extinguished if the alien fails to petition for judicial review within the departure period. Thus, the only period in which an alien may seek judicial review unconditionally is that period set by the INS for voluntary departure, for that is the only time in which judicial review is unfettered by loss of voluntary departure.

We first observe that this policy has no effect on discouraging frivolous petitions for judicial review; it simply means that the petition for review must be filed earlier in order to preserve the grant of voluntary departure. No authority for such a policy is cited, and no notice of such a policy is given to the alien by any statute or regulation.

We cannot sanction the tolling policy because of its unacceptable consequences. The effect of the policy is to shorten the statutory six-month period within which the alien may seek review. See 8 U.S.C. § 1252(c) (1982). No statutory authorization justifies such a procedure. Furthermore, the tolling policy would permit the BIA to vary the allowable period for appellate review from one alien to another. If the consequence of the rule is to make the appeal period equivalent to the period allowed for voluntary departure, different aliens will, in effect, be allowed different periods within which to file for review. Such a rule is inherently vulnerable to abuse and discrepant application. Taken alone, the award of different voluntary departure periods for different aliens is legitimate because the grant of voluntary departure is conditional upon, and should be tailored to, an alien’s individual circumstances. However, when these different departure periods are transformed by means of a tolling policy into allowable periods for filing an unconditional appeal, the result is unconscionable. Appeal periods most certainly should not be subject to variation according to individual circumstances. Our principles of justice dictate that appellate review, where available, should be available on a uniform basis. It is antithetical to this principle to allow the INS effectively to set different periods in which different aliens may seek review — a result which follows directly from the INS rule.

More fundamentally, this approach ignores the dictate of Foti — that one final order of deportation is under review once a petition has been filed within the six-month period. It is that final order of deportation with its provision for voluntary departure that is before the court. Nothing in that order is dependent upon filing the petition for review on a date earlier than specified in the statute.

C. The Court’s Ruling

Viewing the award of voluntary departure as part of the deportation order, both of which are before us on review of a “final order of deportation,” is not only consistent with Foti, but it is the only approach that does not infringe on the alien’s right to appeal, reduce the statutory period allowed by Congress in which to petition for review, or allow the INS effectively to set different time periods within which to petition for different aliens.

The INS argues that the rule we adopt today will encourage frivolous appeals and dilatory tactics. It claims that if deporta-ble aliens are assured that voluntary departure will be preserved upon filing a petition for review, there would remain little incentive for the aliens to leave this country within the period initially granted by the INS. This concern merely begs the question of whether voluntary departure can be conditioned upon waiving the right to appeal or reducing the period within which the alien can appeal. We must not, in our zeal to discourage frivolous appeals, unduly circumscribe the right to appeal and, in so doing, inhibit the taking of meritorious appeals. Moreover, the INS does not explain why its tolling policy, which preserves voluntary departure if an appeal is taken within the voluntary departure period, is not also subject to the same criticism it levels at our position.

Finally, we note that our decision will not significantly extend the alien’s stay in this country. In actuality, the period of post-mandate voluntary departure (normally 30 days) adds very little to the time during which the alien can avoid deportation. As provided by statute, the deportation order is stayed pending an appeal. 8 U.S.C. § 1105a(a)(3). The post-mandate period of voluntary departure will typically amount to only a fraction of the time during which the alien was not deportable while his case awaited our review.

V.

We therefore hold that the voluntary departure period does not expire until after our affirmance of the deportation order. When a final order of deportation is before us on appeal, we review the order in its entirety. Because a final order of deportation encompasses any award of voluntary departure made during or incident to the proceedings, that award is also before us on review. If we affirm the deportation order, the grant of voluntary departure is ordinarily affirmed as well, and the voluntary departure period terminates at a specified time after issuance of our mandate.

We hold that Contreras-Aragon was entitled to affirmance of his order of voluntary departure when the first panel affirmed his order of deportation.

The order of voluntary departure is-AFFIRMED

The panel’s opinion, reported at 789 F.2d 777 is ordered WITHDRAWN

1 . We need not address the merits because, following the first panel’s decision in this case, petitioner made a brief (72-hour) sortie to Mexico where he was granted an immigrant visa on May 27, 1986 by virtue of his marriage to an American citizen. We must, however, determine whether petitioner was entitled to voluntary departure when he made his trip to Mexico to obtain the visa, as that determination affects the validity of the visa. As we hold that he was entitled to voluntary departure when the first panel heard his case, we deem his departure "voluntary”; had he left under a deportation order, he would not have been able to return to the United States.

The INS belatedly suggests that Contreras-Ar-agon’s departure divests us of jurisdiction of this matter. See Thorsteinsson v. INS, 724 F.2d 1365, 1367 (9th Cir.), cert. denied, 467 U.S. 1205, 104 S.Ct. 2386, 81 L.Ed.2d 345 (1984); Hernandez-Almanza v. United States Dept. of Justice, 547 F.2d 100, 103 (9th Cir.1976).

It is true that the statute and the regulations preclude judicial review of deportation orders in cases in which the alien seeking review has departed from the United States. Section 106(c) of the Immigration and Naturalization Act (the "Act”) provides that we shall not review any order of deportation if the alien "has departed from the United States_” 8 U.S.C. § 1105a(c) (1982). Consistent with this provision, 8 C.F.R. § 3.4 (1988) states:

Departure from the United States of a person who is the subject [of] deportation proceedings subsequent to the taking of an appeal but prior to a decision thereon shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken.

However, the statute, the regulations, and the cases cited by the INS do not apply to the circumstances of the present case. This is not a case in which the alien departed the country without appealing, or prior to the decision on appeal. Rather, Contreras-Aragon made a brief visit to Mexico after the original three-member panel of our court rendered its decision on May 12, 1986. Subsequently, we took this case en banc to correct the original panel’s erroneous termination of the privilege of voluntary departure. The petitioner did not request us to take the case en banc and was very likely unaware of that development when he left the country. He does not now contest the merits of the deporta-bility determination; the only issue before us is the legal effect of the uncontested voluntary departure order. Thus, the unique circumstances of his appeal do not deprive us of jurisdiction, as we cannot conceive that the drafters of the legislation contemplated the situation at hand. To construe the statute as urged by the INS amounts to no less than sterile formalism. Thus, we find the jurisdiction limitation inapplicable to our sua sponte decision to correct the error of our earlier panel. We simply vacate the erroneous construction given the BIA’s voluntary departure order by the panel and afford that order the construction which we have heretofore customarily given other similar orders. We also order the panel opinion withdrawn.

2 . We have the authority to review a refusal to grant voluntary departure, and also to review the amount of time given for voluntary departure. We review both for an abuse of discretion. See Villanueva-Franco v. INS, 802 F.2d 327, 328-29 (9th Cir.1986) (reviewing denial of voluntary departure); Cruz-Lopez v. INS, 802 F.2d 1518, 1522 (4th Cir.1986) (reviewing period of voluntary departure). The inquiry in those instances is whether the BIA abused its discretion at the time it made its decision. Here, the award of voluntary departure is uncontested, but forms a part of the final order of deportation under review.

3 . The court went on to hold that the alien no longer had the privilege of voluntary departure because her appeal was frivolous. Id. at 522. Although we firmly agree with the Second Circuit that the right to judicial review should not be burdened with an offer of voluntary departure that evaporates if judicial review is sought, we do not agree that the privilege of voluntary departure granted by the BIA can be terminated as a sanction if the appeal is determined to be frivolous.

4 . The Aguirre decision provided that in order for the voluntary departure period to be tolled, the appeal must be filed within the time permitted for voluntary departure. This will invariably be the case since the appeal period is only ten days, see 8 C.F.R. § 242.21(a) (1988), and the corresponding voluntary departure period is rarely less than 30 days. The Chouliaris decision also added the proviso that if the voluntary departure period was 30 days or less, the same period would be allowed, and, if it were longer, the alien would be allowed 30 days from the date of the BIA decision within which to depart. Chouliaris, 16 I. & N. at 170. This is of no consequence for judicial review, however, since the order we review is the order of the BIA, which provides the specific voluntary departure period.

5 ."Tolling,” in the sense used by the INS, is the preservation of the entire voluntary departure period granted by the BIA. There is no contention that "tolling” preserves only that portion of the voluntary departure period which had not lapsed prior to filing for review. That is not the practice followed by the BIA in appeals from the decision of the IJ.