According to federal regulation 8 CFR § 1003.4, if a noncitizen departs the United States while his appeal of a deportation order is pending, his departure withdraws that appeal. The regulation is seemingly uncomplicated. It sets forth a restriction that noncitizens may not leave the country while in the process of appealing a deportation order. A knowing, voluntary departure reasonably signifies a withdrawal on the part of the noncitizen because it amounts to an act of self-deportation. But the regulation’s application to noncitizens who are involuntarily forced out of the country is less straightforward.

Circuit courts have interpreted and treated § 1003.4 differently, depending on whether they take into consideration the circumstances surrounding a given departure. The Second, Sixth, and Ninth Circuits have questioned whether § 1003.4 extends to noncitizens who depart involuntarily, while the Fifth and Tenth Circuits have maintained that the nonspecific language of the regulation demands its application to all departures, even involuntary ones. That said, all courts have indicated that departures resulting from the government’s unlawful removal of noncitizens should not constitute the withdrawal of their appeals.

This Comment aims to develop an interpretation of § 1003.4 that best resolves the tension among the courts—one that fits with the overall statutory scheme, preserving noncitizens’ statutory right of appeal, but also one that adheres to the text of the regulation. This Comment concludes that the waiver doctrine is the best framework for determining whether a given departure should withdraw a noncitizen’s pending appeal.