with whom SNEED, Circuit Judge, joins, dissenting:

There is no mystery about what the majority is doing in this case: It is reinstating a grant of voluntary departure that long ago expired. That’s what petitioner asks us to do, see Petitioner’s Opening Brief at 36; Petitioner’s Brief for Rehearing En Banc at 4, 11, 13, 14; 1 that’s what the original panel held we had no authority to do, see Contreras-Aragon v. INS, 789 F.2d 777, 779 (9th Cir.1986); that’s what we ordered the parties to brief upon taking the case en banc, see Order of Mar. 10, 1987 (parties to brief “whether this court may reinstate a lapsed grant of voluntary departure”). That’s what this case is all about.

Daunted, perhaps, by the fact that neither statute nor regulation nor Supreme Court opinion authorizes such an action, the majority disavows any intention of reinstating anything, purporting merely to affirm the grant of voluntary departure once issued by the BIA. Since we surely have the power to review and affirm, the majority claims, we are doing nothing extraordinary or unprecedented; we are merely per *1098 forming our normal function of judicial review.

Saying so won’t make it so.

Courts, particularly federal courts, have broad powers indeed. Not among them, however, is the power to repeal the laws of logic, or change the rules of English grammar and syntax, or alter the meaning of words and concepts. It matters only what a court does, not what it says it does. And what the court does here is to breathe new life into an order of voluntary departure that expired long ago. Calling an ostrich an eagle won’t make it fly; calling a reinstatement an affirmance won’t make it lawful. Because the majority in fact exercises a power it concedes it does not have, I respectfully, but emphatically, dissent.

I

First things first. By statute the only one who has authority to grant an alien the privilege of voluntary departure is the Attorney General. 8 U.S.C. §§ 1252 (b), 1254(e) (1982). The Attorney General may delegate this authority to “any officer or employee of the Department of Justice.” Id. § 1103(a). Because we are neither the Attorney General nor officers or employees of the Department of Justice, the statute denies us authority to grant voluntary departure to anyone. This much, it seems, everyone agrees on. Majority Op. at 1094.

The BIA, acting pursuant to delegation from the Attorney General, 8 C.F.R. §§ 3.1 (b)(2), 242.17(b), 244.1 (1987), granted petitioner the right to depart voluntarily for a limited period of time. The order permitted petitioner “to depart from the United States voluntarily within 30 days from the date of this order or any extension beyond that time as may be granted by the district director.” In re Contreras-Aragon, No. A24919364, at 3 (BIA June 4, 1985) (BIA Decision). The BIA’s order was dated June 4, 1985; petitioner has never asked for an extension. Reference to a standard Gregorian calendar reveals that the BIA’s order expired no later than July 4, 1985, some three years ago. 2

Here is where the majority and I part company. As I view it, the BIA’s order having once lapsed, it can no longer authorize petitioner to depart voluntarily unless we extend, or reinstate, or renew, or revive, or reissue it, none of which we are authorized to do. 3 The majority, on the other hand, seems to think that it is sufficient for us merely to affirm the BIA’s order, something we do have authority to do. Which raises the obvious question: What good does it do Mr. Contreras for us to affirm an order that has been dead and gone for three years? No good at all, of course. Indeed, mere affirmance of the *1099 June 4, 1985, BIA order would be so pointless that it would violate the constitutional requirement of a case or controversy, unless the court is in fact doing one of the things it claims it is not.

There is nothing else I need say about my substantive disagreement with the majority: The majority does precisely what it says it cannot. Its actions stand condemned by its own words.

But the majority does far more. In an effort to justify the unjustifiable, the majority commits a number of additional, very serious transgressions. While the question of our authority to reinstate petitioner’s right to voluntary departure may or may not be terribly significant, the majority’s other errors certainly are. Today’s en banc opinion is a boulder cast upon the waters of the law; the waves it raises will be felt in distant and unexpected places. It is to these other errors that I now turn.

II

A. As Justice Kennedy, speaking for a unanimous Court, reminded us only this Term, when the language of the statute is clear, that is the end of the matter. Bethesda Hosp. Ass’n v. Bowen, — U.S. -, 108 S.Ct. 1255, 1258 , 99 L.Ed.2d 460 (1988). The language of the statute here could not be clearer in denying us authority to reinstate a lapsed grant of voluntary departure. See p. 1098 supra. Under Bethesda and a long line of prior cases, there is nothing left for us to do but apply that language as written.

Were the statutory language not entirely clear, it would be appropriate to resort to secondary authorities, such as committee reports or other legislative materials. See, e.g., Dawson Chem. Co. v. Rohm & Haas Co., 448 U.S. 176, 202-15 , 100 S.Ct. 2601, 2616-23 , 65 L.Ed.2d 696 (1980); Muniz v. Hoffman, 422 U.S. 454, 464-74 , 95 S.Ct. 2178, 2184-89 , 45 L.Ed.2d 319 (1975). Occasionally, courts rely on apparent inconsistencies between statutory provisions, see, e.g., Federal Power Comm’n v. Panhandle E. Pipe Line Co., 337 U.S. 498, 513-14 , 69 S.Ct. 1251, 1260-61 , 93 L.Ed. 1499 (1949); Love v. Thomas, 838 F.2d 1059, 1065-67 (9th Cir.1988), or upon administrative interpretations that, over time, have gained the tacit approval of the legislature. See, e.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 135-37 , 106 S.Ct. 455, 463-64 , 88 L.Ed.2d 419 (1985); CBS, Inc. v. FCC, 453 U.S. 367, 382-85 , 101 S.Ct. 2813, 2823-25 , 69 L.Ed.2d 706 (1981).

The majority here relies on none of these things. What the majority does rely on is its own unwillingness to believe that Congress could have intended the result flowing from the plain language of the statute: “We cannot conceive that Congress ... intended to require aliens granted voluntary departure to seek repeated extensions of the voluntary departure period from the district director, in order to preserve the award of voluntary departure until our final determination on the deportation order.” Majority Op. at 1092. The majority does not — and of course cannot — cite statutory language on which to base its conclusion; the statutory language, as noted above, is squarely to the contrary. Reliance on administrative interpretation is equally out of the question. But the majority also points to no committee report, floor statement, witness testimony or any other shred of evidence in the legislative record as a basis for its conclusion. Nothing at all. 4

*1100 This, I respectfully submit, is a dangerous departure from established principles of statutory construction. While reasonable minds differ as to the relative weight to be given various manifestations of legislative intent, I am aware of no prior decision where the court formed an opinion as to what Congress meant based not on anything said by or to any legislator, or written in any committee report or in the statute itself, but rather on the court’s own sense of incredulity. Indeed, all authority is to the contrary. See, e.g., TVA v. Hill, 437 U.S. 153, 172-74 , 98 S.Ct. 2279, 2290-92 , 57 L.Ed.2d 117 (1978) (enforcing plain language of statute to bar completion of $100 million dam despite “paradox” that halting construction would save only “a relatively small number of three-inch fish”).

This is no quibble. When a court undertakes to divine the meaning of statutes based on nothing but its own sense of disbelief, it ceases interpreting the law and starts making it. It is unnecessary to point out here the unwisdom of this approach. Wise or not, this is not what we are commissioned to do. Making laws is the province of the political branches. When courts undertake to second-guess choices made by Congress and the President and clearly embodied in statutory language, they trench upon the authority of coordinate branches of government. As the Court stated in TV A v. Hill: “[I]n our constitutional system the commitment to the separation of powers is too fundamental for us to preempt congressional action by judicially decreeing what accords with ‘common sense and the public weal.’ Our Constitution vests such responsibilities in the political branches.” 437 U.S. at 195 , 98 S.Ct. at 2302 . Under the majority’s regime, no law, no matter how clear, is safe from redaction by the judiciary, and the courts become the ultimate source of legislative power. This is not how the Constitution is written. 5

B. The majority also does violence to established principles of administrative review. The court asks “whether voluntary departure can be used as an enticement to induce the alien to forego judicial review,” and whether petitioner may be “granted the right to voluntarily depart, provided he does not seek judicial review.” Majority Op. at 1093. Having so posed the question, the majority answers it in the negative, concluding that this would place “too dear a price on the right to appeal, a price which we cannot condone.” Id. at 1095. Indeed, the court finds it “unconscionable” and “antithetical” to “principles of justice” for the INS even to shorten the period an alien has to take an appeal as a condition for retaining the privilege of voluntary departure. Id. at 1096.

The majority’s concerns are misplaced. To begin with, unless constitutional principles are implicated, a court’s notion of what is fair and just has no relevance when Congress has spoken. More fundamentally, the court misperceives the issue: Petitioner was not given a choice between giving up voluntary departure and taking an appeal; nor was he required to file a notice of appeal early as a condition for preserving his privilege of departing voluntarily. He need only have sought an extension or reinstatement of his original grant of voluntary departure from the INS district director, a relatively simple and painless procedure.

Petitioner did not even have to make that request within the 30 days allotted for him to depart voluntarily, reasonable as that would have been; the district director may grant an extension or reinstatement at any time after the original grant has lapsed. See n. 3 supra. Petitioner has never requested this relief, even though the BIA’s *1101 order specifically advises him that the period of voluntary departure can be extended by the district director. BIA Decision at 3; see also 52 Fed.Reg. 24,982 (1987) (amending 8 C.F.R. § 244.2 ). Questioned about this at oral argument, petitioner’s counsel admitted freely that it is still not too late:

Transcript of Oral Argument En Banc (June 16, 1987).

Seldom do litigants so candidly admit their unwillingness to submit their claims to the administrative forum provided them by law. In light of this admission, the majority’s rationale that petitioner would be required to give up his appeal in order to preserve the privilege of departing voluntarily is nothing short of astonishing. The opinion builds a snowman only to melt it with the heat of its rhetoric. In doing so, it undermines the heretofore unquestioned principle that a court will not act where the petitioner has failed to exhaust administrative remedies. See, e.g., McKart v. United States, 395 U.S. 185, 193-95 , 89 S.Ct. 1657, 1662-63 , 23 L.Ed.2d 194 (1969); see generally 2 C. Gordon & H. Rosenfield, supra n. 3, § 8.4b.

To be sure, petitioner would run some risk in presenting his claim to the district director. For one thing, it would give the director an opportunity to determine whether petitioner continues to be eligible for voluntary departure. 6 Even if petitioner is eligible, the director may exercise his discretion against granting the relief sought. But these risks, it seems to me, are ones that the petitioner cannot avoid because the law places the responsibility for making these decisions upon the district director, not the court. Indeed, it is precisely because administrative agencies are equipped to make these determinations *1102 that courts must defer to them and compel litigants to present their claims to the agency first.

Petitioner’s obstinate refusal to avail himself of the administrative remedies available to him — even as he admits that obtaining administrative relief would solve his problem and render this case moot — is curious to say the least. Counsel’s suggestions that “it would be really complicated” and that the district director “would essentially not understand it all” make a mockery of the mechanisms Congress and the executive branch have established for dealing with precisely this issue. Quite possibly, petitioner’s reluctance to submit his claim to the district director reflects facts unknown to us that now render him ineligible for the relief he seeks.

In any event, the majority’s repeated assertion that petitioner is put to a hard choice between pursuing his right to judicial review and taking advantage of the privilege of voluntary departure is unfounded. Petitioner, like many others before him, could have partaken of both. In fact, he still can: He simply has to follow the path Congress and the INS have hewn for him. The majority fails even to acknowledge these procedures, treating them as if they were meaningless. This, I respectfully submit, is bad law and worse policy. It is, moreover, an unjustified slight to a coordinate branch of our government. If the court is bent on granting petitioner the relief he seeks, it should, at the very least, require petitioner to press his claim before the INS in the first instance to give that administrative body an opportunity to exercise the discretion entrusted to it by law. 7

C. Finally, and most alarming, the majority gives this case a constitutional dimension it simply does not have. Without quite saying so, the majority plainly holds that it would be constitutionally impermissible to force an alien to run the risk of losing the privilege of voluntary departure if he wishes to appeal his deportation. The majority is demonstrably wrong; its opinion ignores the one Supreme Court ease that is squarely on point, and seriously misconstrues those cases it does rely on.

1. The majority asserts broadly that “[cjourts have long recognized that a judicial officer may not exact a price for the taking of an appeal.” Majority Op. at 1094. In support of this proposition it cites North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969), Worcester v. Commissioner, 370 F.2d 713 (1st Cir.1966), and Short v. United States, 344 F.2d 550 (D.C.Cir.1965). Pearce and Short hold that a court may not retaliate against a defendant for having successfully appealed by imposing a more severe sentence on remand. Worcester holds that a court may not threaten a convicted defendant with a substantial jail sentence if he chooses to appeal while promising him probation if he does not.

Pearce , the authoritative pronouncement in this area, does not establish the per se rule suggested by the majority. Even in criminal cases, the right to appeal may be burdened by the risk of a more severe sentence in case of reversal and retrial; the due process clause requires only that, if a more severe sentence is imposed, the sentencing judge adequately justify his decision. 395 U.S. at 726, 89 S.Ct. at 2081. A fair application of Pearce to INS cases would not render the voluntary departure scheme unconstitutional; it would only require that the district director’s reasons for refusing to reinstate or extend a grant of voluntary departure be placed on the *1103 record, and that those reasons be unrelated to a vindictive attempt to penalize the alien for taking an appeal.

More to the point, however, Pearce is irrelevant to the case before us. As the Supreme Court has held, “[a] deportation proceeding is a purely civil action.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 , 104 S.Ct. 3479, 3483 , 82 L.Ed.2d 778 (1984). Therefore, “various protections that apply in the context of a criminal trial do not apply in a deportation hearing.” Id. Given the “purely civil” nature of this case, the relevant authority is not Pearce and its progeny but Supreme Court cases dealing with the burdens that may be placed on the right to appeal in civil cases.

In Ortwein v. Schwab, 410 U.S. 656 , 93 S.Ct. 1172 , 35 L.Ed.2d 572 (1973) (per curiam), the Supreme Court considered due process and equal protection challenges to a mandatory $25 filing fee for the taking of a judicial appeal from an adverse determination of a state welfare agency. Appellants contended that they were indigents unable to pay the filing fee. Id. at 658 , 93 S.Ct. at 1173. Thus, imposition of the filing fee effectively denied them their right to appeal.

The Court nonetheless upheld the fee, relying on two factors: First, appellants’ claims did not implicate a fundamental constitutional right because they were only seeking increased welfare benefits. The Court distinguished Boddie v. Connecticut, 401 U.S. 371 , 91 S.Ct. 780 , 28 L.Ed.2d 113 (1971), which held that a state could not require indigents to pay filing fees and process costs in order to obtain a judicially approved divorce while denying them any other means of obtaining a divorce. As the Court noted in Ortwein, appellants' interest in increased welfare benefits “has far less constitutional significance than the interest of the Boddie appellants,” 410 U.S. at 659, 93 S.Ct. at 1174, which was predicated on “the special nature of the marital relationship and its concomitant associational interests.” Id. at 658, 93 S.Ct. at 1173.

Second, the Court relied on the fact that appellants had already received an administrative hearing on the merits of their claim. Since “even in criminal cases, due process does not require a State to provide an appellate system,” the fact that the filing fee effectively precluded appeal from the administrative agency’s decision did not violate due process. Id. at 660, 93 S.Ct. at 1174.

Ortwein refutes the majority’s conclusion that petitioner may not be forced to risk losing the privilege of voluntary departure when he chooses to appeal. If anything, petitioner’s situation is far less compelling than that of the welfare claimants in Ortwein; they were denied all access to the courts, while petitioner is not. Even under the majority’s strained hypothesis, the regulatory scheme does not prevent appeals, it merely allows for the possibility that the privilege of voluntary departure will be lost if an alien appeals the BIA’s decision. 8 Only by shutting one’s eyes to controlling authority can it possibly be said that this scheme violates due process. See Ortwein, 410 U.S. at 659-60, 93 S.Ct. at 1174-75; Piatt v. MacDougall, 773 F.2d 1032, 1034-35 (9th Cir.1985) (en banc) (appellate filing fee did not violate indigent plaintiff’s constitutional rights where he had already received one hearing and his claim — for wages allegedly owed him by the state — did not implicate any fundamental interests).

2. Casting about for a convincing argument to justify the result it seeks to reach, the majority unsettles yet another area of constitutional law. The INS may grant voluntary departure at two points in deportation proceedings: first, before any hearing has been held; and second, after the BIA’s decision but before judicial review. Both are intended to encourage the alien to *1104 leave the country without further ado. 9 While the majority opinion speaks approvingly of the first practice, it condemns the second as a compelled waiver of the right to judicial review. Majority Op. at 1095. The distinction between the two, in the majority’s view, is that in the first instance the alien “knowingly waives his right to a deportation hearing in exchange for a guarantee of being able to depart voluntarily,” while after a hearing the alien “has waived nothing.” Id. at 1095 .

The majority advances a distinction without a difference. Whether before the initial hearing or before appeal, the alien would no doubt prefer to take advantage of his procedural rights while retaining the right to depart voluntarily if he is unsuccessful. At either point in the process, the INS would prefer to see the alien go quietly and save itself the burden and expense of further proceedings. The majority gives no persuasive reason for its assertion that the alien who chooses to depart voluntarily before a hearing effectively waives his right to procedural due process whereas the alien who is enticed into giving up an appeal “has waived nothing.”

Indeed, if there is a distinction to be drawn between the two situations, it points to exactly the opposite conclusion. As the Supreme Court has repeatedly observed, “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333 , 96 S.Ct. 893, 902 , 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 , 85 S.Ct. 1187, 1191 , 14 L.Ed.2d 62 (1965)). The due process clause requires the opportunity for a hearing when government wishes to deprive us of our rights; it does not require the opportunity for an appeal. Jones v. Barnes, 463 U.S. 745, 751 , 103 S.Ct. 3308, 3312 , 77 L.Ed.2d 987 (1983); Ortwein, 410 U.S. at 660, 93 S.Ct. at 1174. I do not understand how the regulations can impermissibly burden appeals when the identical burden on the right to any hearing at all is perfectly acceptable. See Wiren v. Eide, 542 F.2d 757, 763-64 (9th Cir.1976) (bond requirement that prevents indigents from obtaining any hearing at all violates due process, unlike filing fee requirements that prevent judicial appellate review of administrative hearings). The majority stands due process on its head.

3. The majority also appears to hold that the right to take an appeal in an immigration case is a fundamental right, like marriage or procreation, and therefore conditioning voluntary departure on its waiver is unconstitutional. Majority Op. at 1095; see also id. at 1094-1095 (citing Israel v. INS, 785 F.2d 738 (9th Cir.1986)). 10 *1105 In Israel we noted that conditioning a grant of voluntary departure on an alien’s promise not to marry a United States citizen amounted to “unjustified government interference in a personal decision relating to marriage,” because the right to marry is a fundamental constitutional right. Id. at 742 n. 8 (citing Zablocki v. Redhail, 434 U.S. 374, 384 , 98 S.Ct. 673, 680 , 54 L.Ed.2d 618 (1978)). The majority apparently believes that the right of appeal is entitled to the same solicitude.

It is difficult to overstate the significance of this aspect of the majority’s opinion. Heretofore, the category of fundamental rights, those the government could abridge only in ways “closely tailored” to effectuate “important” or “compelling” governmental interests, see Zablocki, 434 U.S. at 388 , 98 S.Ct. at 682 ; Shapiro v. Thompson, 394 U.S. 618, 634 , 89 S.Ct. 1322, 1331 , 22 L.Ed.2d 600 (1969),' has remained relatively narrow and well defined. In addition to those specifically enumerated in the Bill of Rights, it includes rights pertaining to marriage, see Zablocki, 434 U.S. at 384-86 , 98 S.Ct. at 680-81 , Loving v. Virginia, 388 U.S. 1, 12 , 87 S.Ct. 1817, 1823 , 18 L.Ed.2d 1010 (1967); family relationships, see Moore v. City of East Cleveland, 431 U.S. 494, 499 , 97 S.Ct. 1932, 1935 , 52 L.Ed.2d 531 (1977); procreation, see Skinner v. Oklahoma, 316 U.S. 535, 541 , 62 S.Ct. 1110, 1113 , 86 L.Ed. 1655 (1942); use of contraception, see Griswold v. Connecticut, 381 U.S. 479, 485-86 , 85 S.Ct. 1678, 1682-83 , 14 L.Ed.2d 510 (1965); child rearing and education, see Stanley v. Illinois, 405 U.S. 645, 651 , 92 S.Ct. 1208, 1212 , 31 L.Ed.2d 551 (1972), Pierce v. Society of Sisters, 268 U.S. 510, 534-35 , 45 S.Ct. 571, 573-74 , 69 L.Ed. 1070 (1925), Meyer v. Nebraska, 262 U.S. 390, 399-401 , 43 S.Ct. 625, 626-27 , 67 L.Ed. 1042 (1923); and personal autonomy, see Shapiro v. Thompson, 394 U.S. at 629 -31 & n. 8, 89 S.Ct. at 1328-29 & n. 8 (right to travel).

The right to judicial review in an immigration case is cut from a wholly different cloth; it is far more akin to a variety of other rights not heretofore thought to be fundamental. See, e.g., Ortwein, 410 U.S. at 659-60, 93 S.Ct. at 1174-75 (right to judicial review of agency decision); Lyng v. UAW, — U.S. -, 108 S.Ct. 1184, 1189-91 , 99 L.Ed.2d 380 (1988) (right of striking workers to receive food stamps); United States v. Barajas-Guillen, 632 F.2d 749, 752-53 (9th Cir.1980) (alien’s right to remain in United States or to be granted voluntary departure). By no stretch of the imagination is the right to judicial review after a full administrative hearing “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105 , 54 S.Ct. 330, 332 , 78 L.Ed. 674 (1934). The Supreme Court expressly repudiated that notion in Ortwein. By treating petitioner’s right to judicial review as analogous to fundamental rights of the type addressed in Israel and Zablocki , the majority has opened the door to an endless variety of claims that look vaguely similar and can equally vie for the exalted status of fundamental rights.

Conclusion

For the reasons stated above, I respectfully dissent.

. Petitioner’s most recent filing succinctly summarized the issue. He asked the court “to fashion a specific, limited grant of reinstatement of a lapsed grant of voluntary departure nunc pro tunc." Petitioner’s Brief on Rehearing En Banc at 14.

. Filing a petition for review in this court did not toll the running of petitioner’s voluntary departure period. Because no appeal was filed until July 15, 1985, the grant of voluntary departure terminated before we acquired jurisdiction. Moreover, even had petitioner appealed before the voluntary departure period expired, that period would be long gone by now. Unlike deportation orders, see 8 U.S.C. § 1105a(a)(3) (1982), voluntary departure orders are not automatically stayed pending judicial review.

. Instead, the regulations vest this power in the INS district director, who has the exclusive authority to grant extensions or reinstatements in the circumstances of this case:

52 Fed.Reg. 24,982 (1987) (amending 8 C.F.R. § 244.2 ) (emphasis added). The INS has ruled that the district director may grant extensions nunc pro tunc to aliens whose original voluntary departure period has lapsed, so long as they possess valid travel documents and a confirmed reservation for transportation and have not extended their stay in the United States "by means of obviously dilatory action in the courts or elsewhere.” INS Operations Instruction 243.-1(a), reprinted in 4 C. Gordon & H. Rosenfield, Immigration Law and Procedure 23-488.9 (1987).

. More troubling still, the majority applies its unprecedented approach to statutory construction even to the fundamental question of our jurisdiction to decide this case. The governing statute provides that “[a]n order of deportation ... shall not be reviewed by any court if the alien ... has departed from the United States after the issuance of the order.” 8 U.S.C. § 1105a(c) (1982). Because petitioner did in fact depart from the United States after the deportation order was issued, the majority seems to concede that the statute on its face deprives us of jurisdiction to hear this case. Majority Op. at 1091 n. 1. But the majority once again “cannot conceive” that the statute means what it says, dismissing the statutory language as “sterile formalism.” Id. While a plausible rationale may exist for retaining jurisdiction over the case, the majority does not articulate it, falling back on its novel technique of statutory interpretation.

. The majority’s assertion that Congress could not have intended for aliens to seek extensions from the district director while their appeal is pending before the court is, in any event, curious. Since an alien’s eligibility for voluntary departure is dependent on the existence of certain facts, see n. 6 infra, it makes perfect sense to require the alien to seek renewal from an administrative body that can determine whether he continues to be eligible for the privilege. Congress surely would not have wanted to burden the courts with making that periodic determination; at the same time, it may not have wanted to extend the right to depart voluntarily for aliens who become ineligible because of a material change in circumstances.

. Voluntary departure may be granted only to an alien who “is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure,” 8 U.S.C. § 1254 (e), and who "is willing and has the immediate means with which to depart promptly from the United States.” 8 C.F.R. § 244.1 . In order to obtain a nunc pro tunc extension from the district director, an alien must demonstrate his readiness and ability to depart and must not have extended his stay in the United States "by means of obviously dilatory action in the courts or elsewhere.” INS Operations Instruction 243.1(a).

. Having said all that, it is not inappropriate to note that petitioner’s case, as presented to .us, is an appealing one for the exercise of administrative grace. The equities appear to have tilted more heavily in petitioner’s favor since 1985: He is now married to a United States citizen and, if granted voluntary departure, would be well on his way to United States citizenship. Cf. 2 C. Gordon & H. Rosenfield, supra n. 3, § 7.2c, at 7-27 (“[fjavorable factors in individual cases, such as close family ties in the United States, ordinarily will be decisive in the grant of relief"). Of course, it may be that, in passing on petitioner’s request for voluntary departure, the INS will discover other facts that place him in a different light. See n. 6 supra. But if petitioner appears to the INS as he does before us, I would certainly expect the INS to exercise its discretion in favor of granting him the relief he seeks.

. Under the government’s approach, the burden is even lighter: to avoid any risk of forfeiting the grant of voluntary departure, petitioner need only have filed his petition for review within the 30 days the privilege was in force. The effective burden on petitioner, a reduction of the time for filing the appeal, fades into insignificance when compared to the burden on the petitioners in Ortwein.

. The BIA itself best explained the rationale for both types of voluntary departure:

In re Wong Chung Pui (BIA unpublished decision, Aug. 21, 1969), quoted in Fan Wan Keung v. INS, 434 F.2d 301, 304-05 (2d Cir.1970). The logic of the INS's position is unassailable.

. The majority states, in dicta, that its rule applies even in the case of frivolous appeals. Majority Op. at 1095 n. 3. There is no attempt to explain this even in light of the majority's own rationale, and for good reason: Even if the right to appeal were, in general, a fundamental right, the same could not be said of the right to appeal frivolously. The majority would not dispute that persons who bring frivolous appeals may be penalized. See, e.g., 28 U.S.C. §§ 1912 , 1927 (1982); Fed.R.App.P. 38. The only distinction here is that the INS, not the courts, makes the determination of frivolousness. We have previously held that “[i]t is within the Board’s competence to determine whether arguments advanced in administrative or judicial proceedings pursuant to a statute the Board is charged with administering are meritless.’’ Gonzalez Batoon v. INS, 791 F.2d 681, 685 (9th Cir.1986) (en banc).

In reaching out to decide the question of whether frivolous appeals can affect an alien’s voluntary departure rights, the majority creates a conflict with the Second Circuit's decision in Ballenilla-Gonzalez v. INS, 546 F.2d 515 (2d Cir.1976), cert. denied, 434 U.S. 819 , 98 S.Ct. 58 , 54 L.Ed.2d 75 (1977). That case, while noting *1105 in dicta that the INS should not deter aliens from bringing nonfrivolous appeals by forcing them to forego voluntary departure, held that aliens who pursue frivolous appeals are not entitled to reinstatement of voluntary departure. Id. at 521-22 .