Introduction

Immigration appeals sometimes outlive the appellant’s physical presence in the United States. Yet Executive Office for Immigration Review (“EOIR”) regulations include a “withdrawal-by-departure” rule: 8 C.F.R. § 1003.4 provides that a respondent’s “departure” after taking an appeal, but before a Board decision, “shall constitute a withdrawal of the appeal.” At the same time, 8 C.F.R. § 1003.6(a) generally bars execution of the Immigration Judge’s (“IJ”) removal order while an appeal is pending, creating a doctrinal collision when DHS removes someone during the appeal period or while the appeal is pending. This article synthesizes the controlling regulatory text, the Board’s key precedent on unlawful removal during a pending appeal, and the federal circuit landscape on post-departure jurisdiction rules (particularly the “departure bar” for motions). It then addresses two distinct scenarios: (1) voluntary departure/self-departure while the BIA appeal is pending and (2) involuntary removal by DHS during the pendency of the appeal (i.e., before final administrative decision). The analysis avoids respondent-identifying facts and is intended for public-facing use.

A. Statutory scaffolding: the right to administrative appellate review and “finality”

A removal order becomes “final” when the Board affirms it or when the time to seek Board review expires. 8 U.S.C. § 1101(a)(47)(B). That “finality” concept matters because many downstream consequences—execution of the order, judicial review timing, and jurisdiction over post-order filings—turn on whether the agency process has finished.

B. The automatic stay principle during a BIA appeal

EOIR regulations generally prohibit DHS from executing the IJ’s removal order while an appeal is pending (and during the appeal-filing period), unless the right to appeal has been waived or another exception applies. 8 C.F.R. § 1003.6(a). This is the regulatory hook that makes a removal during the pendency of a properly filed appeal presumptively unlawful—and sets the stage for the Board’s leading precedent on whether that unlawful removal can extinguish the appeal.

C. The withdrawal-by-departure rule for appeals

The core “appeal departure bar” is 8 C.F.R. § 1003.4. In relevant part, it states that the “departure from the United States” of a respondent in deportation/removal proceedings after taking an appeal but before a Board decision “shall constitute a withdrawal of the appeal,” rendering the IJ decision final “as though no appeal had been taken.” 8 C.F.R. § 1003.4.

Two immediate interpretive questions recur in litigation:

  1. What does “departure” mean—does it include involuntary removal?
  2. If DHS removes someone in violation of § 1003.6(a), can DHS nonetheless invoke § 1003.4 to terminate the Board’s jurisdiction?

The BIA’s Core Precedent on Appeals After Departure

A. Matter of Diaz-Garcia: unlawful removal does not withdraw a pending appeal

The Board’s pivotal published decision on appeals (not motions) is Matter of Diaz-Garcia, 25 I&N Dec. 794 (BIA 2012).

Facts/procedure. The respondent appealed an IJ removal order. While the appeal was pending, DHS removed him. DHS then argued the appeal was withdrawn under 8 C.F.R. § 1003.4, and that the Board lacked jurisdiction.

Issue. Whether DHS’s removal of the respondent during the pendency of a direct appeal—i.e., during a period in which 8 C.F.R. § 1003.6(a) generally bars execution—constituted a “departure” that withdrew the appeal under 8 C.F.R. § 1003.4, thereby depriving the Board of jurisdiction.

Holding. The Board held it retained jurisdiction and would decide the appeal on the merits because § 1003.4 is not applicable where the “departure” results from an unlawful removal by DHS. Matter of Diaz-Garcia, 25 I&N Dec. 794 (BIA 2012).

Reasoning:

  • The Board treated § 1003.6(a) as a critical backdrop: if DHS executes an order when execution is barred, DHS is acting unlawfully.
  • Reading § 1003.4 to convert DHS’s unlawful removal into a jurisdiction-stripping “departure” would allow DHS to unilaterally defeat appellate review by its own error or misconduct, undermining “fundamental fairness.”
  • The Board cited the public interest in preventing wrongful removals and reasoned that jurisdiction should not be lost through DHS’s unlawful act.

Scope/limits. Importantly, the Board explicitly did not decide whether a lawful removal during an appeal period or during a pending appeal (in circumstances where removal is legally permitted) would constitute “departure” under § 1003.4. Matter of Diaz-Garcia, 25 I&N Dec. 794 (BIA 2012). That reservation matters because it delineates the decision’s holding: it is strongest where the removal violates § 1003.6(a) (or other governing stay rules).

B. Matter of Armendarez-Mendez (motions) and why it still matters to appeal-jurisdiction debates

Matter of Armendarez-Mendez, 24 I&N Dec. 646 (BIA 2008) is formally about motions (the “post-departure bar” in 8 C.F.R. § 1003.2(d)), not direct appeals under § 1003.4—but it is frequently invoked in the same litigation ecosystem.

Holding (motions context). The Board held that 8 C.F.R. § 1003.2(d) bars reopening “whether on motion … or sua sponte” once the noncitizen has departed after administrative proceedings are completed. Matter of Armendarez-Mendez, 24 I&N Dec. 646 (BIA 2008).

Why relevant here. In practice, when DHS argues that a pending appeal has been “withdrawn” by departure, the respondent’s procedural lifeline often becomes: “reopen/reconsider the withdrawal/dismissal” or “reinstate the appeal,” which pulls motion doctrine into the appeal context. Moreover, many circuits have rejected the Board’s jurisdiction-stripping view of the motion departure bar, shaping how courts evaluate agency claims that “departure” eliminates adjudicatory authority.

C. Additional BIA precedents bearing on “departure” and post-departure adjudication (motions-focused but doctrinally adjacent)

To situate Armendarez in a longer arc of Board practice:

  • Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998): among other issues, the Board stated it lacked jurisdiction over a motion to reopen after the respondent’s departure pursuant to a final order, invoking the then-numbered motion departure bar (predecessor to § 1003.2(d)). Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998).
  • Matter of Bulnes-Nolasco, 25 I&N Dec. 57 (BIA 2009): the Board recognized limits on the “self-deportation” concept in a specific posture—holding that departure under an in absentia order does not deprive the IJ of jurisdiction to entertain a motion to reopen to rescind for lack of notice. Matter of Bulnes-Nolasco, 25 I&N Dec. 57 (BIA 2009).

These cases do not resolve the direct-appeal question under § 1003.4, but they show the Board’s evolving and sometimes context-dependent understanding of what “departure” does to adjudicatory authority.

Federal Circuit Law: What the Courts Say About Post-Departure Jurisdiction (All Circuits)

Even though your primary topic is BIA jurisdiction to proceed with a pending appeal after departure, the federal appellate landscape is most developed in motions cases (the “departure bar” to reopening/reconsideration). Courts repeatedly analyze whether an agency may “contract” jurisdiction by regulation and whether Congress created a statutory right that a regulation cannot extinguish—principles that also inform judicial reactions to § 1003.4 disputes.

A. First Circuit

  • Perez Santana v. Holder, 731 F.3d 50 (1st Cir. 2013): held the post-departure bar cannot prevent invocation of the statutory right to file a motion to reopen.
  • Related First Circuit treatment appears in the same doctrinal line as other circuits rejecting jurisdiction-stripping readings of the departure bar.

B. Second Circuit

  • Luna v. Holder, 637 F.3d 85 (2d Cir. 2011): addressed the departure bar framework and recognized that the statutory motion process must remain meaningfully available, rejecting rigid jurisdiction-stripping applications in the statutory-motion setting.
  • Zhang v. Holder, 617 F.3d 650 (2d Cir. 2010): upheld the Board’s application of the departure bar as a limit on sua sponte reopening (a recurring carveout across circuits).

C. Third Circuit

  • Prestol Espinal v. Att’y Gen., 653 F.3d 213 (3d Cir. 2011): held 8 C.F.R. § 1003.2(d) is inconsistent with IIRIRA’s statutory motion-to-reopen/reconsider scheme.

D. Fourth Circuit

  • William v. Gonzales, 499 F.3d 329 (4th Cir. 2007): invalidated the post-departure bar for statutory motions, emphasizing that a regulation cannot eliminate the statutory “one motion” right.

E. Fifth Circuit

The Fifth Circuit draws a sharper distinction between statutory motions and sua sponte motions:

  • Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012): rejected applying the departure bar to statutory motions to reopen (Chevron step one reasoning that the statute is unambiguous).
  • But it has upheld (or deferred to) departure-bar limits in sua sponte settings in cases such as Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2009) and later applications like Uribe-Sanchez v. Sessions, 891 F.3d 535 (5th Cir. 2018).

F. Sixth Circuit

  • Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011): struck down the departure bar as conflicting with Congress’s statutory scheme and underscored the “agencies can’t self-limit Congressionally assigned jurisdiction” principle.
  • In the appeal context, the Sixth Circuit is one of the few to address § 1003.4’s “departure” language: Madrigal v. Holder, 572 F.3d 239 (6th Cir. 2009) (discussed further below).

G. Seventh Circuit

  • Marin-Rodriguez v. Holder, 710 F.3d 734 (7th Cir. 2013) (and the earlier Seventh Circuit remand line referenced within it): rejected jurisdiction-stripping applications of the departure bar for statutory motions, emphasizing that the Board cannot use regulation to foreclose adjudication Congress made available.

H. Eighth Circuit

  • Ortega-Marroquin v. Holder, 640 F.3d 814 (8th Cir. 2011): illustrates the Eighth Circuit’s approach where equitable tolling/timeliness issues intersect with departure-bar questions; it vacated and remanded where the Board had not addressed threshold tolling issues before relying on departure-bar logic.

I. Ninth Circuit

The Ninth Circuit is the most developed on both motions and appeals after departure:

  • Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010): held that applying the departure bar to treat a motion as withdrawn by involuntary removal would eviscerate the statutory motion right.
  • Toor v. Lynch, 789 F.3d 1055 (9th Cir. 2015): held the departure bars in 8 C.F.R. §§ 1003.2(d), 1003.23(b)(1) invalid irrespective of manner of departure (broadest Ninth Circuit formulation).
  • Lopez-Angel v. Barr, 952 F.3d 1045 (9th Cir. 2020): squarely addressed 8 C.F.R. § 1003.4 and held that a respondent’s removal while the BIA appeal is pending did not withdraw the appeal under § 1003.4. (More detail below.)

J. Tenth Circuit

The Tenth Circuit’s trajectory is notable because it moved from upholding the departure bar to rejecting it en banc:

  • Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009) (historical baseline): upheld the departure bar.
  • Contreras-Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012) (en banc): overruled that line, holding the regulation impermissibly interferes with Congress’s clear intent as to statutory motions.
  • The circuit also addressed departure bar issues in the sua sponte arena post-Kisor: Reyes-Vargas v. Barr, 958 F.3d 1295 (10th Cir. 2020).

K. Eleventh Circuit

  • Jian Le Lin v. U.S. Att’y Gen., 681 F.3d 1236 (11th Cir. 2012): held the departure bar impermissibly conflicts with the INA’s statutory motion-to-reopen provision.
  • In in absentia/no-notice settings relevant to Bulnes-Nolasco logic, Eleventh Circuit authority includes Contreras-Rodriguez v. Gonzales, 462 F.3d 1314 (11th Cir. 2006).

L. D.C. Circuit

In conducting current public-source research, I did not locate a widely cited, published D.C. Circuit decision directly resolving the validity of EOIR’s “departure bar” regulations for motions or construing 8 C.F.R. § 1003.4 in the pending-appeal context. Where D.C. Circuit issues arise, litigants often proceed through other circuits based on detention venue/removal proceeding venue rules rather than building a large D.C. Circuit body of departure-bar precedent.

The Two Scenarios (Your Requested Framework)

Scenario 1: The respondent leaves “on his own” while the BIA appeal is pending

A. Baseline rule: § 1003.4 treats voluntary departure/self-departure as withdrawal

Where the respondent voluntarily departs after filing a BIA appeal—whether by “self-removal,” travel abroad, or executing a voluntary departure grant—the government’s baseline position is straightforward: 8 C.F.R. § 1003.4 says the appeal is withdrawn by “departure,” and the IJ decision becomes final “as though no appeal had been taken.” 8 C.F.R. § 1003.4.

B. Why this is doctrinally stable (and difficult to undo)

Unlike the motion departure bar, § 1003.4’s withdrawal-by-departure rule has not been invalidated across circuits as plainly conflicting with IIRIRA’s statutory motion scheme. Scholarship has criticized this asymmetry—arguing it can operate as a trap for appellants who must depart for reasons unrelated to the merits (family, safety, etc.).[1] But as a practical matter, voluntary departure during a pending appeal is still the scenario most likely to trigger § 1003.4 as written.

C. Practical consequences for “voluntary departure” grants

If the IJ granted voluntary departure with an alternate removal order and the respondent appealed, the interaction between appeal filing, stay rules, and voluntary-departure timing can become complex. The BIA Practice Manual explains that withdrawal makes the IJ decision “immediately final,” and DHS may then execute the order.[2] The broader takeaway is that voluntary actions taken during a pending appeal can abruptly convert a non-final order into a final one.

D. Litigation posture: arguing “departure” should be read as “voluntary, knowing withdrawal”

The strongest textual/structural arguments—when made—tend to emphasize:

  • A “withdrawal” ordinarily implies a voluntary act by the appellant.
  • Treating all departures as withdrawals can create perverse incentives and undermine appellate review functions.[1]

But these are interpretive arguments; absent a controlling circuit decision narrowing § 1003.4 to voluntary acts, the regulation remains a major risk in voluntary-departure/self-departure cases.

Scenario 2: DHS forcibly removes the respondent while the BIA appeal is pending (no final IJ decision because the appeal is pending)

This is the higher-stakes—and better-litigated—scenario.

A. The doctrinal fulcrum: § 1003.6(a) makes many such removals unlawful

If a timely appeal is properly filed and not waived, 8 C.F.R. § 1003.6(a) generally prohibits execution of the IJ’s removal order while the appeal is pending. 8 C.F.R. § 1003.6(a). Thus, a removal during this window is frequently “unlawful” as a regulatory matter.

B. The Board’s answer: unlawful removal does not withdraw the appeal (Diaz-Garcia)

As explained above, Matter of Diaz-Garcia, 25 I&N Dec. 794 (BIA 2012) holds that unlawful removal during the pendency of an appeal does not constitute a “departure” under § 1003.4 that withdraws the appeal, because DHS cannot deprive the Board of jurisdiction through its unlawful act. Matter of Diaz-Garcia, 25 I&N Dec. 794 (BIA 2012).

In a public-facing synthesis, the doctrinal rule is:

If DHS removes a respondent in violation of the regulatory stay of removal applicable to a pending BIA appeal, the Board should treat § 1003.4 as inapplicable and proceed to adjudicate the appeal.

C. The Ninth Circuit’s parallel rule: forced removal does not withdraw the appeal (Lopez-Angel)

The Ninth Circuit’s leading case is Lopez-Angel v. Barr, 952 F.3d 1045 (9th Cir. 2020).

Core holding. Removal while the BIA appeal is pending did not withdraw the appeal under 8 C.F.R. § 1003.4. Lopez-Angel v. Barr, 952 F.3d 1045 (9th Cir. 2020).

Functional rationale. The Ninth Circuit stressed that allowing DHS to extinguish an appeal by removing the appellant would undermine the statutory/regulatory appellate scheme, because it would deprive the respondent not only of administrative review but also of the ability to exhaust issues necessary for judicial review.

D. The Sixth Circuit’s related logic: Madrigal v. Holder

The Sixth Circuit held that § 1003.4 was “inapplicable” where the petitioner was forcibly removed during the pendency of the appeal. Madrigal v. Holder, 572 F.3d 239 (6th Cir. 2009).

This aligns with the Board’s fairness reasoning in Diaz-Garcia: involuntary removal should not be treated as an appellant’s voluntary withdrawal.

E. Remedy mechanics: what practitioners actually ask for

In this posture, the typical procedural requests include:

  • Reinstatement of the appeal / vacatur of any “withdrawn” designation (where the Board administratively closes or dismisses as withdrawn).
  • Stay-related relief (including emergency motions) and, if necessary, judicial intervention emphasizing Nken v. Holder, 556 U.S. 418 (2009)’s stay principles.
  • Merits adjudication notwithstanding the respondent’s absence (as the Board did in Diaz-Garcia where representation and briefing were intact). Matter of Diaz-Garcia, 25 I&N Dec. 794 (BIA 2012).

The 2026 Regulatory Development: Discretionary Merits Review at the BIA (and Why It Matters Here)

On February 6, 2026, DOJ published an interim final rule titled Appellate Procedures for the Board of Immigration Appeals, 91 Fed. Reg. 5276 (Feb. 6, 2026), described as streamlining BIA appellate review and making review of IJ decisions on the merits discretionary in specified circumstances.[3] This development does not erase 8 C.F.R. § 1003.4’s withdrawal-by-departure text, but it can amplify the practical consequences of a “withdrawal” finding: if an appeal is treated as withdrawn, the IJ decision can become the operative final order without a Board merits decision, which can in turn affect exhaustion and judicial review posture.

For public-facing analysis, the key point is not the rule’s politics or wisdom, but its structural effect: any doctrine that prematurely converts an appeal into a “withdrawal” becomes more consequential as appellate merits review becomes more discretionary and more streamlined.

Synthesis: A Clear, Public-Facing Rule Set

A. Voluntary departure while appeal pending

  1. Default: § 1003.4 applies; appeal treated as withdrawn; IJ decision becomes final. 8 C.F.R. § 1003.4.
  2. Litigation space: limited and heavily interpretive; strongest arguments frame “withdrawal” as voluntary and “departure” as ambiguous.[1]

B. Forced removal while appeal pending (no finality yet)

  1. If removal violates the appeal stay regime: the better rule—under BIA precedent and multiple circuits—is that § 1003.4 should not be used to withdraw the appeal. Matter of Diaz-Garcia, 25 I&N Dec. 794 (BIA 2012); Lopez-Angel v. Barr, 952 F.3d 1045 (9th Cir. 2020); Madrigal v. Holder, 572 F.3d 239 (6th Cir. 2009).
  2. Remedy posture: reinstate/continue the appeal and adjudicate it on the merits; do not allow DHS’s unlawful execution to determine jurisdiction.

C. Motions safety net (after departure)

Even when the dispute is framed as “appeal jurisdiction,” real litigation often requires motion practice. On that front, most circuits have rejected applying the motion departure bar (8 C.F.R. § 1003.2(d)) to statutory motions to reopen/reconsider, though some circuits still allow the Board to invoke departure-bar logic in sua sponte contexts. See, e.g., Perez Santana v. Holder, 731 F.3d 50 (1st Cir. 2013); Prestol Espinal v. Att’y Gen., 653 F.3d 213 (3d Cir. 2011); William v. Gonzales, 499 F.3d 329 (4th Cir. 2007); Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012); Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011); Marin-Rodriguez v. Holder, 710 F.3d 734 (7th Cir. 2013); Toor v. Lynch, 789 F.3d 1055 (9th Cir. 2015); Contreras-Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012) (en banc); Jian Le Lin v. U.S. Att’y Gen., 681 F.3d 1236 (11th Cir. 2012).

Endnotes

  1. Marianna C. Mancusi-Ungaro, Defining “Departure” in the Context of 8 C.F.R. § 1003.4, 76 U. Chi. L. Rev. (2009).
  2. EOIR, BIA Practice Manual (see Chapter 4.11 on withdrawal of appeals).
  3. Appellate Procedures for the Board of Immigration Appeals, 91 Fed. Reg. 5276 (Feb. 6, 2026) (interim final rule).
  4. National Immigration Project / NIPNLG, Post-Departure Motions to Reopen and Reconsider (practice advisory).
  5. American Immigration Council, Departure Bar to Motions to Reopen and Reconsider: Legal Overview and Related Issues (practice advisory).
  6. Jonathan H. Ross, A Gate Forever Closed? Retiring Immigration Law’s Post-Departure Bar, Fordham L. Rev. (2012).