ORDER
In a case arising under the Illegal Immigration Reform and Immigrant Responsibility Act’s (“IIRIRA”) transitional rules where the Board of Immigration Appeals (“BIA”) granted the alien voluntary departure, we must decide whether the voluntary departure period is stayed by the filing of a petition for review 1 in this court. 2 We find that it is and, accord *899 ingly, deny petitioner’s motion to stay voluntary departure as moot.
I
Joseph Elian is a Christian Palestinian from the West Bank. In 1990, after spending three months in Jordan and acquiring a Jordanian passport, he traveled to the United States on a non-immigrant visa. On or about April 25, 1996, the Immigration and Naturalization Service issued an order to show cause charging Elian with violating the terms of his visa. On October 11, 1996, Elian, represented by counsel, admitted the charge, conceded deport-ability, and filed an application for asylum, withholding of deportation, and protection under the Convention Against Torture. The Immigration Judge (“IJ”) heard Eli-an’s case оn September 20, 1999. The IJ denied Elian’s applications for relief, but determined that Elian qualified for voluntary departure. Elian filed a timely appeаl with the BIA. The Board streamlined the appeal and summarily affirmed the IJ’s decision in an order dated August 1, 2002. This order gave Elian 30 days to voluntarily depart from thе United States.
On August 27, 2002, Elian filed with us a petition for review of the BIA’s decision and a , motion to stay deportation. We granted the motion to stay deportation on March 14, 2003. On August 22, 2003, nearly a year after the expiration of the period for Elian to voluntarily depart, he filed a motion asking us to stay his voluntary departure period pending our consideration of his petition for review.
On March 1, 2004, we ordered the parties to file supplemental letter briefs addressing the stay of voluntary departure issue. Elian filed a brief in favor of an automatic stay; the government filed a brief taking the oppositе position. However, at oral argument the government withdrew its brief and announced that it agreed with Elian that automatic stays are appropriate in transitional rules cases. In a letter dated April 27, 2004, the government memorialized this change of heart, reiterating its final position that in transitionаl rules cases the voluntary departure period should be automatically stayed pending judicial review of the deportation order. 3
*900 II
An alien who overstays a voluntary departure period set by the BIA is subject to a civil fine of between $1,000 and $5,000 and faces ten years of ineligibility for voluntary departure, cancellation of removal, adjustment of status, or permanent residence. Immigration and Nationality Act (“INA”) § 240B(d), 8 U.S.C. § 1229c(d). Consequently, the answеr to the question presented in this case is of enormous practical effect not only for Elian, but for every alien proceeding under the trаnsitional rules who receives voluntary departure. Upon consideration of the three variations on the relevant statutory regime—the pre-IIRIRA “old” rules, the post-IIRIRA “permanent” rules, and the “transitional” rules—we agree with the parties and hold that the BIA-allotted time period for a transitionаl rules petitioner to voluntarily depart from the United States does not begin to run until our final disposition of the alien’s petition for review.
A
Our analysis of the voluntary departure issue begins with the pre-IIRIRA case of
Contreras-Aragon v. INS,
B
Post IIRIRA, the law split into two strands. Under the permanent rules, we can consider a petition for review after the petitioner has left the country. 8 U.S.C. § 1252(b)(8)(B). This factor was key to our decision in Zazueta-Carrillo:
IIRIRA repealed the jurisdictional provision that concerned us in Contreras-Aragon. We now may entertain a petition after thе alien has departed. Congress’s desire to expedite removal by voluntary assent now does not conflict with the alien’s ability to pursue a pеtition for review. So the concern about fairness that motivated us in Contreras-Aragon has been alleviated.
The concern that animated
Contreras-Aragon,
however, is alive and well in the transitional rules context.
See
IIRIRA § 309(c)(1) (“[I]n the case of an alien who is in exclusion or deportation proceedings [before April 1, 1997] ... the amendments made by this subtitle shall not apply.”). If the voluntary departurе period is not stayed, a transitional rules petitioner still faces the Hobson’s choice of either (1) forfeiting the rights conditioned upon his or her timely departure by remaining in the United States to pursue a petition for review or (2) forfeiting his or her right to petition for review by leaving the country in a timely mаnner.
See Hose v. INS,
*901 c
Accordingly, we agree with the position promoted by both Elian аnd the government and hold that
Contreras-Aragon,
rather than the line of permanent rules cases running from
Zazueta-Carrillo
through
El Himri v. Ashcroft,
The 30-day period for Elian to voluntarily depart the United States will begin to run upon the issuance of our mandate. Elian’s motion to stay his voluntary departure period is denied as moot.
MOTION FOR STAY OF VOLUNTARY DEPARTURE DENIED AS MOOT.
Notes
. We address the merits of the petition for review in a memorandum disposition filed contemporaneously with this opinion.
. IIRIRA’s transitional rules apply in cases where deportation or exclusion proceedings commenced before April 1, 1997, and the final deportation or exclusion order was issued after October 30, 1996.
See Kalaw v. INS,
We stress that the voluntary departure question before us is limitеd to transitional rules cases. It is settled law that in permanent rules cases—those initiated after April 1, 1997—the voluntary departure period begins
*899
to run when the BIA renders its decision; the period is not automatically stayed by the filing of a petition for review in this court.
Zazueta-Carrillo v. Ashcroft,
If a permanent rules petitioner filеs a motion to stay voluntary departure before expiration of the voluntary departure period set by the BIA, we have equitable jurisdiction to issue the stay where the petitioner seeking review of a removal order shows either “(1) a probability of success on the merits and the possibility оf irreparable injury, or (2) that serious legal questions are raised and the balance of hardships tips sharply in the petitioner's favor.”
El Himri v. Ashcroft,
. On April 2, 2004, we vacatеd submission of this case pending our decision in Desta. Although following the reasoning of Desta in this case would lead to essentially the same outcome, since Elian filed a timely and prevailing motion to stay removal, see note 2 supra, for the reasons discussed below we hold that Desta is not controlling in the transitional rules context.