reason it does not apply retroactively is “because aliens would not otherwise receive notice that the filing of their motions would automatically terminate their voluntary departure.” 73 Fed.Reg. at 76,936. In other words, retroactive application would be unfair for those aliens who did not want to forfeit their right to voluntarily depart. This concern is not relevant to Patel who has indicated a strong intention to forgo the benefit. Given the confusion around the Rule discussed above and the lack of guidance, it was reasonable for someone in Patel’s position to think that the BIA — consistent with the proposed Rule given “respectful consideration” by the Supreme Court — would construe her motion to reopen as an automatic termination of a voluntary departure grant. The BIA 9) (<HOLDING>); In re Maknojiya, 2008 WL 5181789 (BIA Nov.
holding the bia did not err in denying aliens motion to stay voluntary departure period pending determination on the motion to reopen holding that aliens must be permitted to unilaterally withdraw voluntary departure requests in order to pursue motions to reopen holding the respondent  implicitly exercised his right to withdraw his voluntary departure request and instead  elected to remain to pursue his motion holding respondents motion to reopen and her decision to remain while it was adjudicated reflects an election to pursue the underlying application for relief rather than voluntary departure holding motion to reopen seeking adjustment of status constituted a withdrawal of the request for voluntary departure and the adjustment motion was therefore not barred based on failure to depart within the voluntary departure time allowed