of Velasco, 25 I. & N. Dec. 143, 146 (BIA 2009) (quoting 73 Fed.Reg. at 76,936). A case on appeal to the BIA, as Patel’s was at the time, is considered to be “pending before EOIR.” Id. Moreover, the Supreme Court in Dada analyzed the INA with the then-proposed Rule in mind, stating that the Rule “warrants respectful consideration.” 554 U.S. at 21, 128 S.Ct. 2307 (quotation omitted). The BIA’s precedential opinion in Matter of Velasco recognizing this confusion and reiterating that the Rule applies prospectively only was not issued until more than one year after Patel filed her motion to reopen and the BIA adjudicated the same. The rationale behind prospective application of the Rule does not apply to Patel. The Supplementary Information issued with the Rule indicates that the 2008) (<HOLDING>). Here, too, the circumstances indicate that
holding the respondent  implicitly exercised his right to withdraw his voluntary departure request and instead  elected to remain to pursue his motion holding bia did not err in determining request for stay of voluntary departure is not an implicit request for a withdrawal of 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 holding that aliens must be permitted to unilaterally withdraw voluntary departure requests in order to pursue motions to reopen 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