The regulations provide that departure from the United States under an order of deportation, or while a removal order is on appeal to the BIA, shall render the immigration judges decision final and bar any motion to reopen or reconsider. 8 C.F.R. 1003.2(d), 1003.4. However, many circuits have challenged the validity of these regulations. William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (first sentence of 8 C.F.R. 1003.2(d) is ultra vires to statute); Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007); Reynoso-Cisneros v. Gonzales, 491 F.3d 1001 (9th Cir. 2007) (giving narrow reading to phrase "is the subject of"); Contreras-Rodriguez v. United States Atty Gen., 462 F.3d 1314 (11th Cir. 2006) (departure regulation does not apply to in absentia motions to reopen); Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 838 (9th Cir. 2003) ("Under 8 C.F.R. 1003.4, any voluntary departure from the United States following entry of an order of deportation will be deemed to withdraw a pending appeal and to render the order of deportation final.").
Thanks to Rachel E. Rosenbloom; Beth Werlin.