Yola Rife v. John Ashcroft ( 2004 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 03-2127
    ___________
    Alex Nicolay Rife; Yulia Rife; Yola     *
    Rife,                                   *
    *
    Petitioners,               * Petition for Review of an
    * Order of the Board of
    v.                                * Immigration Appeals.
    *
    John Ashcroft                           *
    *
    Respondent.                *
    ___________
    Submitted: February 11, 2004
    Filed: July 7, 2004
    ___________
    Before LOKEN, Chief Judge, BOWMAN and WOLLMAN, Circuit Judges.
    ___________
    LOKEN, Chief Judge.
    Alex Rife, his wife Yulia, and their daughter Yola entered the United States
    from Israel in 1993 and remained past the period authorized by their tourist visas.
    The Rifes applied for asylum and withholding of removal. After a hearing, the
    Immigration Judge (IJ) denied the application, granting them permission to
    voluntarily depart the United States at their own expense. See 8 U.S.C. § 1229c(b).
    The Board of Immigration Appeals (BIA) affirmed without opinion. The Rifes
    petition for judicial review of the denial of asylum and withholding of removal. They
    urge in the alternative that they be permitted to voluntarily depart, and Yola Rife
    moves to dismiss her appeal on the condition that she is granted voluntary departure.
    The government urges us to affirm the agency decision and argues that we lack
    jurisdiction to extend the Rifes’ voluntary departure beyond the period ordered by the
    BIA, which has now expired. We affirm the denial of asylum and withholding of
    removal. We resolve the voluntary departure issue in the Rifes’ favor.
    I. Background
    Alex Rife was born in Baku, Azerbaijan in 1957. His father is Jewish, but he
    was raised as a Russian Orthodox Christian, his mother’s faith. Yulia Rife was born
    in Baku in 1957 to a Russian Orthodox father and a Jewish mother. They married in
    1979. Yulia was baptized in the Russian Orthodox Church in 1984. Yola Rife was
    born in November 1979 in Moscow, where Alex, a cameraman, had been sent to film
    the 1980 Olympic Games. The Rifes returned to Baku and remained until 1990.
    In 1988, when both Armenia and Azerbaijan were republics of the Soviet
    Union, conflict erupted over the disputed territory of Nagorno-Karabakh, an
    Azerbaijan province populated primarily by Armenians. Violence against Armenians
    occurred in Baku and other Azerbaijan cities. The hostilities were both ethnic and
    religious, as Armenians are predominantly Apostolic Christians and Azeris are
    predominantly Muslims. Many Christian churches in Baku were destroyed, including
    the Russian Orthodox church the Rifes attended. In late 1989, the Rifes hid an
    Armenian Christian mother and her children in their home for ten days. During the
    stay, shots were fired at the Rifes’ home, they received threatening phone calls, and
    their roof was damaged by unknown assailants.
    In January 1990, the Soviet Union declared martial law and deployed troops
    in Azerbaijan. When Alex Rife filmed the resulting anti-Soviet demonstrations in
    Baku, his camera was smashed and he was beaten and detained for twenty-four hours
    -2-
    in a government building. A day or two later, the Rifes fled to Moscow on an
    airplane carrying Russians away from the hostilities in Muslim-dominated Baku.
    Prior to fleeing to Moscow, the Rifes had applied to many countries for permanent
    visas. Only Israel had responded favorably, offering them citizenship and permanent
    resettlement visas under Israel’s Law of Return because Yulia Rife’s mother is
    Jewish. Upon arriving in Moscow, Alex applied to Soviet authorities for permission
    to leave. Permission was granted in June 1990, and the Rifes moved to Israel.
    When the Rifes arrived in Israel, the government issued “oleh’s certificates”and
    offered a “basket of absorption,” government benefits available to Jewish immigrants.
    The Rifes accepted some benefits but declined others, allegedly because their goal
    was to come to the United States. Both Alex and Yulia obtained employment in
    Haifa, and the family continued to receive government benefits. However, when
    Yulia declared her interest in attending a Christian church, their initially friendly
    neighbors in Haifa insulted the family and threw stones at them, and Yola was teased
    by her school classmates. Many students in Yulia’s music class withdrew upon
    learning she is a Christian. The Rifes moved and enrolled Yola in a new school,
    where she was more severely harassed about her religious beliefs.
    The Rifes lived in Israel for three years. In May 1993, they received Israeli
    passports. Yulia and Yola entered the United States on six-month visas in mid-1993.
    Alex remained in Israel to repay Israeli government benefits totaling $6,500. He then
    sold their remaining assets in Israel and entered the United States on a six-month visa
    in October 1993. The Rifes arrived with nearly $10,000, intending to remain
    permanently, and currently reside in Missouri. Alex and Yulia have had two more
    children while in the United States and have become active evangelical Christians.
    Proselytizing is an important part of their new religion.
    -3-
    The Rifes applied for asylum and withholding of removal in November 1993.
    The IJ denied the applications, finding them ineligible for asylum because they firmly
    resettled in Israel before entering the United States, and finding that they failed to
    demonstrate past persecution or a well-founded fear of future persecution in either
    Israel or Azerbaijan. Because the Rifes declined to designate a country of removal
    or citizenship, and because the IJ was unable to determine with certainty the country
    of which Alex and Yulia are “natives, subjects or citizens,” the IJ ordered them
    removed to “the country where they last habitually resided,” Israel, and if Israel
    refuses to accept them, “to the country which has control over the territory where they
    were born,” Azerbaijan. The BIA affirmed without opinion in April 2003.
    On appeal, the Rifes first argue that the BIA abused its discretion in affirming
    without opinion because the agency misapplied its own regulation. See 8 C.F.R.
    § 1003.1(e)(4). However, the BIA decision whether to employ this procedure in a
    particular case “is committed to agency discretion and not subject to judicial review.”
    Ngure v. Ashcroft, 
    367 F.3d 975
    , 983 (8th Cir. 2004). When the BIA affirms without
    opinion, the IJ’s decision becomes the final agency action, which we must affirm if
    it is supported by substantial evidence on the administrative record as a whole. See
    Tawm v. Ashcroft, 
    363 F.3d 740
    , 743 (8th Cir. 2004). When the agency has denied
    asylum and withholding of removal, the petitioner “bears the heavy burden of
    showing that his evidence ‘was so compelling that no reasonable factfinder could fail
    to find the requisite fear of persecution.’” Melecio-Saquil v. Ashcroft, 
    337 F.3d 983
    ,
    986 (8th Cir. 2003), quoting INS v. Elias-Zacarias, 
    502 U.S. 478
    , 483-84 (1992).
    That standard is now codified in 8 U.S.C. § 1252(b)(4)(B).
    II. Asylum
    The Attorney General has discretion to grant asylum to an alien who is a
    “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is an alien who is unable or unwilling
    -4-
    to return to his country of origin “because of persecution or a well-founded fear of
    persecution on account of race, religion, nationality, membership in a particular social
    group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). The Rifes argue they are
    eligible for asylum as refugees from both Azerbaijan and Israel.
    A. Did the Rifes Firmly Resettle in Israel? The Attorney General may not
    grant asylum to an alien who firmly resettled in another country before coming to the
    United States. See 8 C.F.R. § 208.13(c)(2)(i)(B).1 The regulations provide that “[a]n
    alien is considered to be firmly resettled if, prior to arrival in the United States, he or
    she entered into another country with, or while in that country received, an offer of
    permanent resident status, citizenship, or some other type of permanent resettlement.”
    8 C.F.R. § 208.15. The circuits differ somewhat in the importance placed on whether
    the government establishes that the country of prior resettlement formally offered
    citizenship, permanent resident status, or some form of permanent resettlement. See
    generally Salazar v. Ashcroft, 
    359 F.3d 45
    , 50-51 (1st Cir 2004); 
    Abdille, 242 F.3d at 485-86
    . We agree with the Third Circuit in Abdille that the text of 8 C.F.R.
    § 208.15 makes this an important factor and, indeed, the proper place to begin the
    firm resettlement analysis. But in some cases it will not be dispositive. For example,
    in our only decision resolving a firm resettlement issue, we affirmed the BIA’s
    determination that the alien’s four-year stay in Spain constituted firm resettlement
    even though his application for refugee status in Spain was still pending when he
    came to the United States. Farbakhsh v. I.N.S., 
    20 F.3d 877
    , 882 (8th Cir. 1994);
    accord Cheo v. I.N.S., 
    162 F.3d 1227
    , 1229-30 (9th Cir. 1998).
    1
    The firm resettlement doctrine was codified prospectively in 1996 by the
    enactment of 8 U.S.C. § 1158(b)(2)(A)(vi). See generally Abdille v. Ashcroft, 
    242 F.3d 477
    , 483 n.4 (3d Cir. 2001). Only the regulation applies in this case because the
    Rifes applied for asylum prior to April 1997.
    -5-
    In this case, the Israeli government offered the Rifes permanent resettlement
    under the Law of Return, issued certificates evidencing citizenship when they
    arrived,2 and issued passports in 1993. The Rifes argue that their Israeli citizenship
    and permanent visas are invalid because, though part Jewish by birth, they are
    practicing Christians. However, although Israel has apparently denied citizenship
    under the Law of Return to ethnic Jews who converted to another religion, the Rifes
    offered no evidence that Israel has ever revoked the citizenship of an oleh upon
    learning that he or she converted to Christianity. The record includes a State
    Department Advisory Opinion stating, “It is our understanding, after speaking with
    the Consular Affairs Department at the Israeli Embassy in Washington, that persons
    with Israeli passports are Israeli citizens and may return to Israel.” The Rifes argue
    that their passports have expired and the Israeli government did not respond to their
    renewal request. The IJ discounted the non-response because the passport renewal
    request was only sent at the IJ’s insistence and made many unnecessary references to
    the Rifes’ intent to convert others to evangelical Christianity. See Ali v. Reno, 
    237 F.3d 591
    , 596 (6th Cir. 2001), and cases cited.
    The Rifes further argue that they fall within the exception to the firm
    resettlement asylum bar found in 8 C.F.R. § 208.15(a). They contend that their entry
    into Israel was “a necessary condition of their flight from [persecution]” because
    Israel was the only country that offered them refuge from Azerbaijan, they stayed in
    Israel only long enough “to earn and save enough money to secure onward travel,”
    2
    The record includes a document issued by the Israel Foreign Ministry that
    states in relevant part: “The Law of Return (1950) grants every Jew wherever he may
    be, the right to come to Israel as an ‘oleh’ (a Jew immigrating to Israel) and become
    an Israeli citizen. . . . Israeli citizenship becomes effective on the day of arrival in the
    country or of receipt of an oleh’s certificate, whichever is later. A person may
    declare, within three months, that he/she does not wish to become a citizen.” The
    Rifes received oleh’s certificates and made no such declaration.
    -6-
    and they “have no familial, property, or employment ties to Israel.” The IJ rejected
    this contention, finding “that the wife’s departure from the Soviet Union culminated
    in their admission to Israel where they were resettled as refugees and granted Israeli
    citizenship, which was recognized by their procurement of Israeli passports.” We
    agree. Prior to their arrival in the United States, the Rifes lived and worked in Israel
    for three years, receiving substantial government benefits, before leaving of their own
    accord. Their stay in Israel “was not a stopover en route to refuge in the United
    States.” 
    Farbakhsh, 20 F.3d at 882
    . Substantial evidence supports the IJ’s finding
    that the Rifes firmly resettled in Israel before coming to the United States. The
    exception for refugees in transit does not apply, and therefore the firm resettlement
    regulation bars their application for asylum as refugees from Azerbaijan.
    B. Are the Rifes Refugees from Israel? The Rifes may not be granted asylum
    as refugees from Azerbaijan because they firmly resettled in Israel. However, firm
    resettlement does not preclude them from establishing that events following
    resettlement constitute past persecution or create a well-founded fear of future
    persecution, entitling them to asylum as refugees from the country of resettlement,
    Israel. See 
    Abdille, 242 F.3d at 492
    . The Rifes argue they are refugees from Israel.
    The IJ found that the Rifes established neither past persecution nor a well-founded
    fear of persecution in Israel. Substantial record evidence supports these findings.
    The Rifes’ claim of past persecution in Israel is without merit. The Israeli
    government allowed them to enter on permanent visas with financial assistance,
    issued them certificates evidencing citizenship, took no adverse action when they
    openly exhibited their Christianity, and provided Israeli passports when they wished
    to leave. “As for slurs and harassment from private individuals, these do not
    constitute persecution.” See Fisher v. I.N.S., 
    291 F.3d 491
    , 497 (8th Cir. 2002).
    -7-
    The Rifes allege a well-founded fear of future persecution if they return to
    Israel, based primarily upon an anti-missionary bill pending in the Israeli Knesset that
    would impose a criminal penalty of up to a year in prison for religious proselytizing.
    The Department of State Country Report on Human Rights Practices for 1998
    explained (at pp. 9-10):
    [Israel] law provides for freedom of religion, and the Government
    generally respects this right. . . . Missionaries are allowed to proselytize,
    although the Church of Jesus Christ of Latter-Day Saints has agreed not
    to do so under an agreement with the Government. A 1977 anti-
    proselytizing law prohibits anyone from offering or receiving material
    benefits as an inducement to conversion, but the law has not been
    applied for several years. In 1997 a bill was introduced to impose
    restrictions on proselytizing including a ban on the distribution of
    written materials encouraging conversions. A more restrictive bill that
    would ban virtually all forms of proselytizing passed a preliminary
    reading in the Knesset in April with significant government support.
    Neither bill is expected to be enacted. Christian and other
    evangelical groups assert that the draft bills are discriminatory and serve
    to intimidate Christian groups.
    “Persecution is the infliction or threat of death, torture, or injury to one’s person or
    freedom” on account of a statutory ground such as religion. Regalado-Garcia v.
    I.N.S., 
    305 F.3d 784
    , 787 (8th Cir. 2002). In this case, the Israeli government did not
    punish the Rifes for proselytizing during their three years in Israel because they did
    not convert to an evangelical branch of Christianity until they came to the United
    States. The record on this issue is not so compelling that no reasonable factfinder
    could fail to find the requisite fear of persecution from the ambiguous evidence in the
    Country Report that Israel may be less than receptive to proselytizing by its
    evangelical Christian residents. Compare Valioukevitch v. I.N.S., 
    251 F.3d 747
    , 749
    (8th Cir. 2001). Thus, the Rifes are ineligible for asylum from Israel.
    -8-
    III. Withholding of Removal
    The Rifes seek withholding of removal to Israel or Azerbaijan. Removal to a
    specific country must be withheld if the alien establishes a “clear probability” of
    persecution in that country. See 8 U.S.C. § 1231(b)(3); 
    Ngure, 367 F.3d at 989
    .
    “Clear probability” is a more rigorous standard than the well-founded fear of
    persecution that makes one eligible for asylum. See 
    Regalado-Garcia, 305 F.3d at 788
    . Thus, the Rifes are not entitled to withholding of removal to Israel. Their firm
    resettlement in Israel does not bar the Rifes from claiming withholding of removal to
    Azerbaijan. See 
    Salazar, 359 F.3d at 52
    , and cases cited. This issue is potentially
    significant because, if Israel refuses to accept the Rifes, the IJ has ordered them
    removed to Azerbaijan.
    The Rifes argue that they are entitled to withholding of removal to Azerbaijan
    because it is clearly probable they will be “identified, intimidated, attacked, and
    possibly even killed” by Muslim extremists the government cannot control. Before
    they fled Baku, the Rifes were threatened and their roof damaged because they
    sheltered a family of Armenians from the ethnic and religious hostilities between
    Armenians and Azeris. However, the IJ found that they were targeted for sheltering
    refugees rather than for a protected statutory ground. The Rifes are not ethnic
    Armenians, and they suffered no further harassment after the family left. Nothing in
    the record suggests that the Rifes would now be the targets of ethnic or religious
    persecution because of this isolated incident in 1989.
    The Rifes fled Baku for Moscow during chaotic times. Ethnic and religious
    hostilities between Armenia and Azerbaijan caused the Soviet Union to intervene,
    which in turn prompted local demonstrations against the arriving Russian troops.
    Alex Rife was beaten and detained while filming the demonstrations. He believes the
    perpetrators were “KGB.” This incident falls well short of establishing a clear
    probability of persecution if they return to Azerbaijan. Since January 1990, the
    -9-
    Soviet Union has collapsed, and Azerbaijan is now an independent country. At the
    removal hearing, Alex Rife could not explain to the IJ why he would be persecuted
    by the present government for this January 1990 incident. Moreover, “[i]t is a well-
    established principle that minor beatings and brief detentions, even detentions lasting
    two or three days, do not amount to political persecution, even if government officials
    are motivated by political animus.” Eusebio v. Ashcroft, 
    361 F.3d 1088
    , 1091 (8th
    Cir. 2004).
    The Rifes further argue it is clearly probable the Azerbaijan government will
    persecute them “for proselytizing on behalf of their evangelical Christian beliefs.”
    Though Azerbaijan’s citizens are predominantly Muslim, the Azerbaijan Constitution
    “allows people of all faiths to practice their religion without restrictions.”
    Department of State Country Report on Human Rights Practices for 1996 at 7. The
    Country Report notes that “[n]on-Orthodox Christian groups have complained of
    official harassment” and have been attacked by opposition newspapers for missionary
    activity, but all non-Armenian Christian groups may hold services and conduct
    religious activities. In an earlier 1993 report, the Justice Department reported that
    Azerbaijan enacted a Law On Religious Freedom in 1992 that permits “limitations”
    on religious freedom “in necessary cases,” an undefined phrase. This ambiguous
    record fails to establish a clear probability that the Rifes would suffer religious,
    ethnic, or political persecution if removed to Azerbaijan. Thus, the denial of
    withholding of removal to Azerbaijan must be affirmed.
    IV. Voluntary Departure
    At the conclusion of removal proceedings, the Attorney General has the
    discretion to permit a removable alien to depart the United States voluntarily at his
    or her own expense. See 8 U.S.C. § 1229c(b). For the government, voluntary
    departure may expedite and reduce the cost of removal. For the affected alien,
    voluntary departure avoids the stigma of compulsory removal, permits the alien to
    -10-
    select his or her own destination, and facilitates the possibility of return to the United
    States, for example, by adjustment of status. See Contreras-Aragon v. I.N.S., 
    852 F.2d 1088
    , 1090 (9th Cir. 1988) (en banc). An alien who fails to voluntarily depart
    within the specified time period is subject to a civil monetary penalty and is ineligible
    for voluntary departure and other relief, such as adjustment of status, for a period of
    ten years. See 8 U.S.C. § 1229c(d).
    In Safaie v. I.N.S., 
    25 F.3d 636
    , 641 n.1 (8th Cir. 1994), following the Ninth
    Circuit’s decision in Contreras-Aragon, we held:
    Unless otherwise stated, when this court affirms a decision of the [BIA],
    which contains a grant of voluntary departure, we intend and it is
    implied that voluntary departure is granted under the same conditions as
    stated in the [BIA’s] decision and that the time allowed for voluntary
    departure will begin to run on the date upon which our mandate issues.
    At that time, the Immigration and Nationality Act included a number of provisions
    that prompted this decision. Aliens petitioning for judicial review were entitled to
    automatic stays of removal (deportation), 8 U.S.C. § 1105a(a)(3) (1994), but the
    reviewing court lost its jurisdiction if the alien voluntarily departed the United States,
    8 U.S.C. § 1105a(c) (1994). To avoid forcing the alien to choose between judicial
    review and the grant of voluntary departure, the BIA conceded that an appeal filed
    before the departure period expired tolled the running of the period. But this limited
    tolling did not solve the problem, because the statute granted the alien ninety days to
    seek judicial review whereas the agency typically granted only thirty days to depart
    voluntarily. Moreover, the agency’s decisions to grant or deny voluntary departure
    were judicially reviewable, so it made sense to postpone the effective date of a
    voluntary departure order until after the order had been reviewed. See Contreras-
    
    Aragon, 852 F.2d at 1093-95
    & n.4.
    -11-
    The BIA’s April 2003 order granted the Rifes permission to voluntarily depart
    “within 30 days from the date of this order or any extension beyond that time as may
    be granted by the district director.” Twenty days later, the Rifes commenced this
    appeal and moved for a stay of removal pending appeal. The government did not
    object, and we granted the stay. At oral argument, counsel for the Rifes urged us to
    to apply the Safaie holding and extend their time for voluntary departure if we deny
    relief on the merits. After oral argument, Yola Rife moved to dismiss her appeal
    conditioned on the reinstatement or extension of the thirty-day period of voluntary
    departure granted by the BIA. The government argues that our jurisdiction to grant
    this voluntary departure relief was eliminated by the Illegal Immigration Reform and
    Immigrant Responsibility Act of 1996 (IIRIRA).
    We agree that “IIRIRA so recast the statutory landscape that the rationale for
    [our ruling in Safaie] has been eliminated.” Zazueta-Carrillo v. Ashcroft, 
    322 F.3d 1166
    , 1170 (9th Cir. 2003). First, IIRIRA abolished judicial authority to review
    discretionary grants or denials of voluntary departure; only the Attorney General now
    has the authority to grant this statutory benefit. See 8 U.S.C. §§ 1229c(f),
    1252(a)(2)(B)(i). Second, IIRIRA repealed the provision that courts may not review
    a removal order if the alien has departed the United States. See 8 U.S.C.
    § 1252(b)(3)(B). This eliminates the dilemma of having to choose between judicial
    review and voluntary departure, though it does not remove the risk in an asylum case
    that the alien will depart and suffer the very persecution being litigated before the
    appeal can be completed. Third, IIRIRA abolished the rule that aliens are entitled to
    automatic stays of removal upon filing petitions for review. See 8 U.S.C.
    § 1252(b)(3)(B). This eliminates the practical need for corresponding automatic stays
    of the voluntary departure period.
    These changes remove the statutory bases for our decision in Safaie, but they
    do not resolve the issue before us. The first question is whether a reviewing court
    may stay the agency’s removal order pending judicial review. IIRIRA expressly
    -12-
    answers this question in the affirmative. See 8 U.S.C. § 1252(b)(3)(B) (a removal
    order shall not be stayed pending appeal “unless the court orders otherwise”). Thus,
    although automatic stays are not appropriate under IIRIRA because an alien’s
    removal does not moot his or her petition for judicial review, all circuits that have
    considered the question agree that a stay of removal pending appeal may be granted
    upon a proper showing by the alien.3
    The government argues that we may not stay the voluntary departure part of a
    removal order because, under IIRIRA, voluntary departure is a statutory remedy
    whose exercise by the Attorney General is not subject to judicial review. But
    granting a stay does not violate this principle. Here, the BIA granted voluntary
    departure after denying the Rifes asylum and withholding of removal. The question
    is not whether the agency properly exercised its voluntary departure discretion, which
    is non-reviewable, but only whether we may stay the agency’s grant of this remedy
    while we review the removal order. The grant or denial of a stay pending appeal is
    a customary part of the judicial function. See FED. R. APP. P. 8. Although Congress
    3
    When there is no right to an automatic stay, the general factors governing the
    grant or denial of a stay are:
    (1) whether the stay applicant has made a strong showing that he is
    likely to succeed on the merits; (2) whether the applicant will be
    irreparably injured absent a stay; (3) whether issuance of the stay will
    substantially injure the other parties interested in the proceeding; and (4)
    where the public interest lies.
    Hilson v. Braunskill, 
    481 U.S. 770
    , 776 (1987). The circuit decisions are in conflict
    over whether this general standard should be modified to incorporate 8 U.S.C.
    § 1252(f)(2), which provides that “no court shall enjoin the removal of any alien . . .
    unless the alien shows by clear and convincing evidence that the entry or execution
    of such order is prohibited as a matter of law.” Compare Maharaj v. Ashcroft, 
    295 F.3d 963
    , 965-66 (9th Cir. 2002), with Weng v. U.S. Attorney General, 
    287 F.3d 1335
    , 1337-40 (11th Cir. 2002). We need not address that issue.
    -13-
    may restrict our power to grant stays, nothing in IIRIRA expressly precludes us from
    staying this part of the BIA’s order. See 
    Zazueta-Carrillo, 322 F.3d at 1176
    (Berzon,
    J., concurring). Indeed, IIRIRA points strongly in the opposite direction. See 28
    U.S.C. § 2349(b) (“the court of appeals in its discretion may restrain or suspend, in
    whole or in part, the operation of the [agency] order pending the final hearing and
    determination of the petition”), a statute made applicable to removal cases by 8
    U.S.C. § 1252(a)(1).
    Because voluntary departure is most beneficial to the government as well as to
    the alien when a removal order is finally effective, it would make no sense to construe
    IIRIRA as permitting a stay of removal but precluding a complementary stay of
    voluntary departure. For these reasons, we agree with decisions holding “that the
    standards for obtaining a stay of removal [under IIRIRA] shall also apply to stays of
    voluntary departure.” El Himri v. Ashcroft, 
    344 F.3d 1261
    , 1262 (9th Cir. 2003);
    accord Nwakanma v. Ashcroft, 
    352 F.3d 325
    , 327-28 (6th Cir. 2003); contra Chumil
    v. Ashcroft, 89 Fed. Appx. 164, 170 n.6 (10th Cir. 2004). We so held without
    discussing the issue in Elfarra v. Ashcroft, 88 Fed. Appx. 141, 142 (8th Cir. 2004).
    That brings us to the final aspect of this problem, the Rifes’ failure to file a
    motion expressly seeking a stay of their voluntary departure period until long after
    the thirty-day period granted by the BIA had expired. We are unwilling to overlook
    an alien’s failure to timely raise the issue. Under IIRIRA, automatic stays are
    improper. Therefore, an alien who petitions for judicial review of a removal order
    that includes a period for voluntary departure must demonstrate irreparable injury and
    a likelihood of success on the merits to warrant a stay of the voluntary departure
    period. We may not ignore this statutory change, which Congress adopted to expedite
    removals and to curb perceived misuse of the judicial process. Cf. Ballenilla-
    Gonzalez v. I.N.S., 
    546 F.2d 515
    , 521 (2d Cir. 1976), cert. denied, 
    434 U.S. 819
    (1977). In addition, we share the Tenth Circuit’s doubt whether we have the authority
    under IIRIRA to reinstate an agency grant of voluntary departure that has truly
    -14-
    expired. See Sviridov v. Ashcroft, 
    358 F.3d 722
    , 731 (10th Cir. 2004). Thus, we
    will no longer restore or reinstate the voluntary departure privilege for aliens who do
    not seek relief before the agency-granted period expires.
    On the other hand, the Rifes did not ignore the problem. They filed a motion
    to stay removal before their voluntary departure period expired. Because a motion
    to stay voluntary departure complements and in many cases may be ancillary to a
    motion to stay removal pending judicial review, we agree with the Ninth Circuit that
    a middle ground is appropriate in these circumstances: “We therefore hold that where
    an alien files a motion to stay removal before the period of voluntary departure
    expires, we will construe the motion to stay removal as including a timely motion to
    stay voluntary departure.” Desta v. Ashcroft, 
    365 F.3d 741
    , 749 (9th Cir. 2004).
    Unlike the Ninth Circuit panel in Desta, we do not hold that every alien who
    warrants a stay of removal also warrants a stay of voluntary departure. We leave that
    issue for the future because there may be cases where the equities relevant to the two
    types of stay will balance differently. Thus, aliens petitioning for judicial review of
    removal orders that include the grant of voluntary departure will be well-advised to
    file motions for stays that specifically address each issue. But if, as in this case, the
    alien files a motion to stay removal before the period of voluntary departure expires,
    we will deem the grant of that motion to include a stay of the voluntary departure
    period. That is particularly appropriate in this case, because the Attorney General did
    not oppose the Rifes’ motion for stay of removal, and our past practice gave them
    reason to believe that the stay of removal included a stay of their voluntary departure
    period as well.
    V. Conclusion
    We affirm the IJ’s denial of asylum and withholding of removal. We construe
    our previous order granting a stay of removal as including a stay of the voluntary
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    departure period granted by the BIA. Accordingly, the period in which Alex Rife,
    Yulia Rife, and Yola Rife may each voluntarily depart the United States in
    accordance with the BIA’s order shall begin to run with the issuance of this court’s
    mandate. Yola Rife’s conditional motion to dismiss her petition for review is granted.
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