dissenting.

The facts are simple. The Shaars were granted voluntary departure. During their period for voluntary departure, they became eligible for suspension of deportation and filed motions to reopen requesting such relief. 1 The immigration judge had not decided the motions when the period for voluntary departure expired, and petitioners did not depart. When the motions were finally considered, they were denied on the ground that 8 U.S.C. § 1252b(e)(2)(A) bars relief to any alien who has overstayed his voluntary departure period.

I.

This interpretation of Section 1252b(e)(2)(A), adopted by a bare majority of the Board of Immigration Appeals (“BIA”) and affirmed by this panel, reads the statute to create an absolute bar to discretionary relief, lifted only if the alien can show “exceptional circumstances.” It substitutes a lottery for predictable decision-making. Some applicants who file timely, meritorious motions will be heard; most will not—based solely on whether the particular administrative law judge to whom their motion is assigned happens to act within their discretionarily-defined voluntary departure period. 2 This interpretation ignores Congress’ intent that aliens be permitted to file, and the Immigration and Naturalization Service (“INS”) be required to hear, a single, timely-filed, meritorious motion to reopen; it treats similarly situated aliens in a disparate manner, and forces aliens to forgo eongressionallyauthorized relief or face a substantial penalty. It is both unreasonable and arbitrary.

It is unreasonable because it rests on the premise that Congress intended to allow aliens to file certain motions to reopen, but to preclude immigration judges from hearing them. Both by statute and regulation, aliens have been authorized to file motions to reopen. See 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 3.2 . In fact, Congress first explicitly authorized motions to reopen in the same section of the Immigration Act of 1990 which adopted Section 1252b(e)(2)(A). See Pub.L. No. 101-649, 104 Stat. 4978, 5063-64, § 545(a) (1990) (“IMMACT 90”). Congress directed the Attorney General to establish limitations on the “period of time in which motions to reopen” may be filed and the “number of such motions that may be filed,” see id. at 5066, § 545(d), but did not preclude motions to reopen filed after a grant of vol *960 untary departure, or place any other restrictions on motions to reopen. Accordingly, the Shaars, who filed a single motion to reopen within 90 days of the final administrative decision—meeting the time and number requirements adopted by the Attorney General, see 8 C.F.R. § 3.23 (b)(4)(i), and later by Congress, see 8 U.S.C. § 1229a(c)(6)—were authorized to file their motions to reopen. The majority’s interpretation of .Section 1252b(e)(2)(A), however, would preclude an immigration judge from hearing their motions. Congress, then, must have intended to allow motions to reopen to be filed but not heard. Because this conclusion is absurd, I dissent from the majority’s interpretation of the statute. 3

The majority’s interpretation is arbitrary because it assumes Congress intended that an alien’s opportunity to obtain relief depend not on the merits of the alien’s application, but on whether a randomly assigned tribunal happens to act on the motion within the alien’s period of voluntary departure. Aliens with equally meritorious claims will be given relief or deported based on nothing more than the backlog of the judges assigned to hear their cases. 4

The proposed interpretation is arbitrary in another respect. In Contreras-Aragon v. INS, 852 F.2d 1088 (9th Cir.1988) (en bane), and Matter of Chouliaris, Interim Decision 2572, 16 I. & N. Dec. 168 (BIA 1977), this court and the BIA acted to preserve an alien’s right to pursue a meritorious appeal without sacrificing the benefits of voluntary departure. 5 Yet the majority presents aliens with an even starker dilemma: Leave at the end of the voluntary departure period and thereby forfeit the right to suspension of deportation granted by Congress, or remain, forgo a hearing on the merits, and be precluded from relief for five years. 6

The only basis suggested by the majority for the disparate treatment of appeals and motions to reopen is that the latter are “disfavored.” The majority finds authority for this proposition in INS v. Doherty, 502 U.S. 314, 323 , 112 S.Ct. 719, 724-25 , 116 L.Ed.2d 823 (1992). Doherty held only that the grant or denial of a motion to reopen is discretionary; it did not vest discretion in the INS to decide whether or not to entertain motions to reopen. Although the majority flatly asserts “[tjhere is no similarity” between motions to reopen and direct review, Majority op. at 3427, they share a critical similarity—Congress has authorized both. In the face of explicit congressional authorization of motions to reopen, see 8 U.S.C. § 1229a(e)(6), the abstract “disfavor” in which such motions may be held cannot justify the majority’s conclusion.

Nor does the Shaars’ failure to apply for a further extension or to file their motion earlier justify the majority’s decision. By relying on the supposed availability of extensions to preserve aliens’ claims, the majority’s interpretation takes the final decision on meritorious motions to reopen out of the hands of this court, the BIA, or even an immigration *961 judge, and places it with the district director who initiated the proceedings to deport the alien in the first place. It is unfair and mischievous to premise a party’s ability to pursue a meritorious claim on the consent of the opposing party, who may exercise this power arbitrarily to defeat the claim. 7 Moreover, the majority’s interpretation will deny relief to all aliens whose voluntary departure period has expired, including those who, unlike the Shaars, file immediately and request, but are denied, an extension. It may be true that the Shaars could not reasonably expect their claims to be heard before the expiration of their time for voluntary departure, but even applicants who file motions to reopen promptly will have no guarantee of a hearing and, as one BIA member suggested, no great likelihood of one.

The eligibility of such applicants for relief will not turn on their own actions or the merits of their claims, but on factors entirely beyond their control. The fact that Congress has authorized suspension of deportation for these applicants, and authorized them to file a motion to reopen for this purpose, is rendered irrelevant, not because Congress said so, or because the authorized agency found them unworthy of relief, but simply because an immigration judge was busy with another matter, or perhaps out of town, and did not get around to their motion.

II.

The irrationality of allowing motions to reopen to be filed but not heard, and of conditioning the grant or denial of relief on reasons unrelated to the merits also raises serious questions of due process and the equal protection of the laws.

A.

“Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.” Plyler v. Doe, 457 U.S. 202, 210 , 102 S.Ct. 2382, 2391 , 72 L.Ed.2d 786 (1982). The majority focuses on the process the Shaars received prior to the grant of voluntary departure, declaring “it can hardly be gainsaid that they were given all the process they were due before they were told to depart our shores.” Majority op. at 958. The relevant question, however, is whether the Shaars were denied the process Congress established for the consideration of motions to reopen. 8 Whether or not a motion to reopen is required for due process in deportation proceedings, “when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution— and, in particular, in accord with the Due Process Clause.” Evitts v. Lucey, 469 U.S. 387, 401 , 105 S.Ct. 830, 838-39 , 83 L.Ed.2d 821 (1985). The majority avoids the critical issue by characterizing a motion to reopen to apply for discretionary relief from deportation as “some additional benefit,” Majority op. at 958, rather than as the process Congress established to allow meritorious claims for relief to be brought to light. 9

B.

The disparate treatment of similarly situated aliens implicates the guarantee of equal *962 protection. Even in the absence of a fundamental right, the government must still demonstrate a rational basis for such treatment. See Reno v. Flores, 507 U.S. 292, 306 , 113 S.Ct. 1439, 1449 , 123 L.Ed.2d 1 (1993) (“Of course, the INS regulation must still meet the (unexacting) standard of rationally advancing some legitimate governmental purpose ... ”). 10 Under the majority’s interpretation, two aliens with identical suspension of deportation claims, who are due to voluntarily depart on the same date, who file motions to reopen on the same date, may face drastically different fates. If this result sprang from a discretionary determination that one alien was unworthy of relief, or did not timely file an appropriate motion, it would be acceptable. But the disparate treatment permitted by the majority’s interpretation does not arise from any substantive or procedural difference between applicants; it arises from the arbitrary assignment of one applicant’s motion to a judge who could and did act upon it promptly, and the other to one who could not or did not. Such arbitrary distinctions violate equal protection. “[Individuals within a particular group may not be subjected to disparate treatment on criteria wholly unrelated to any legitimate governmental interest.” Francis v. INS, 532 F.2d 268, 273 (2d Cir.1976).

The majority simply asserts, as I have noted, that the Shaars’ inability “to take advantage of some additional benefit does not show any irrationality.” Majority op. at 958. But again, this is not the relevant question; rather, we must determine whether any rational basis exists for distinguishing between aliens who timely file meritorious claims. The majority provides none. Instead, it suggests this equal protection analysis mistakenly “foeus[es] on marginal cases.” Majority op. at 958. But the equal protection clause does not cease to operate at the margins.

The majority believes the Shaars’ delay in filing and failure to request a further extension negates these constitutional concerns. But the absolute bar created by the majority’s interpretation of Section 1252b(e)(2)(A) applies with equal force to aliens who have taken every step the majority asks of them. It applies to all cases, not to the Shaars alone.

III.

A.

Contrary to the majority’s conclusion, the language of Section 1252b(e)(2)(A) does not compel this “absurd, and perhaps unconstitutional, result.” 11 We are required to give effect to the plain meaning of statutory provisions, see INS v. Cardoza-Fonseca, 480 U.S. 421, 431 , 107 S.Ct. 1207, 1212-13 , 94 L.Ed.2d 434 (1987), but the plain meaning of a statute is not determined by its language alone; statutory context and congressional policy are also relevant. 12 The majority’s interpretation instead relies on an “uncritical literalism” the Supreme Court has recently admonished us to avoid. California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316 , -, 117 S.Ct. 832, 838 , 136 L.Ed.2d 791 (1997). 13

*963 Though the literal language of Section 1252b(e)(2)(A) (“any alien allowed to depart voluntarily ... who remains in the United States after the scheduled date of departure ... shall not be eligible for relief’) appears to preclude any grant of relief following expiration of an alien’s voluntary departure period, such relief remains available in at least two situations not spelled out in the words of the statute: (1) when a petitioner’s voluntary departure period is reinstated after the initial period has expired, restoring eligibility for relief notwithstanding the “absolute” bar, see 8 C.F.R. § 244.2 ; and (2) following an appeal to the BIA or court of appeals, see Contreras-Aragon, 852 F.2d at 1092-93 ; Matter of Chouliaris, 16 I. & N. Dec. 168 . 14 In light of these implicit exceptions to its facially absolute preclusion of relief, Section 1252b(e)(2)(A) necessarily permits more than its bare language suggests.

Section 1252b(e)(2)(A) does not directly address petitioners’ circumstance, neither avowing nor disavowing an intent to punish an alien who files a timely and meritorious motion to reopen which, through no fault of his own, is not heard before his date of voluntary departure. “[A] statute, although seemingly clear at first, often contains latent ambiguities, requiring recourse to other explanatory sources.” United States v. Garner, 767 F.2d 104, 110 (5th Cir.1985). 15 Section 1252b(e)(2)(A) is just such a statute, as made apparent by the BIA’s fractured decision 16 and by the INS’ failure to even propose the majority’s reading of the statute to the immigration judge. 17

B.

Faced with this latent ambiguity, we must consider whether the legislative history of IMMACT 90 reveals Congress’ intent. See Oklahoma v. New Mexico, 501 U.S. 221 , 235 n. 5, 111 S.Ct. 2281 , 2289-90 n. 5, 115 L.Ed.2d 207 (1991). That history does not support the majority’s conclusion that IM-MACT 90 was motivated by a single-minded determination to prevent any delay in the deportation process; nor does it compel the majority’s interpretation of Section 1252b(e)(2)(A).

IMMACT 90 clearly reflects an intent to close loopholes and restrict immigrants’ procedural options in various ways, but it does not demonstrate any firm conviction that aliens are abusing motions to reopen. To the contrary, Congress requested the Attorney General to make “recommendations for the prevention of such abuse, if any exists,” *964 H.R.Rep. No. 101-955, at 133 (1990), reprinted in 1990 U.S.C.C.AN. 6784, 6798 (emphasis added), and directed her to “take into account possible exceptions appropriate in the interest of justice.” IMMACT 90, Pub.L. No. 101-649, 104 Stat. 4978, 5066, § 545(c). 18 Congress was not motivated by existing abuse to curtail sharply the availability of motions to reopen to petitioners such as the Shaars; 19 rather, it authorized such motions to be filed.

C.

Finally, as the dissenting members of the BIA point out, there are alternative interpretations of Section 1252b(e)(2)(A) that are consistent with the statutory language and purpose and avoid unconstitutional and irrational results.

Most directly, motions to reopen may be treated as are appeals, and the grant of voluntary departure continued until the motion has been adjudicated. See ContrerasAragon, 852 F.2d at 1094-95 .

Alternatively, as suggested by the BIA’s chairman, Section 1252b(e)(2)(A)’s exception for “exceptional circumstances” may be applicable: Barring a legitimate application for relief simply because the immigration judge fails to act within the period of voluntary departure is an exceptional circumstance “beyond the control of the alien.” 8 U.S.C. § 1252b(f)(2). The statute does not define exceptional circumstances other than to provide they should be at least as compelling as those caused by serious illness or the death of an immediate relative. See id. Loss of a legitimate claim for relief from deportation and permanent separation from family in the United States are sufficiently compelling to justify invoking the exception.

Finally, consistent with our interpretation of statutes of limitations, and the INS’ treatment of similar filing requirements, eligibility for relief could be determined as of the date a motion to reopen is filed rather than the date it is adjudicated. See Shaar, 1996 WL 426889 (Guendelsberger, B.M., dissenting) (citing 8 C.F.R. § 245.1 ; 8 C.F.R. § 248.1 ). As suggested by the American Immigration Lawyers Association, as amicus before the BIA, the filing of a meritorious motion may be interpreted to toll the period for voluntary departure. Aliens would then be encouraged to file motions to reopen promptly, to maximize the period for voluntary departure left them should their motion be denied, but would not be penalized for delays beyond their control.

Each of these interpretations is consistent with Congress’ intent to allow aliens with valid claims to reopen their deportation proceedings, and would avoid the absurd, arbitrary, and likely unconstitutional results that will follow from the interpretation adopted by the majority.

IV.

Petitioners “stole a march” on no one. Majority op. at 955. Rather, they proceeded “in the orderly manner provided by law,” Majority op. at 955, filing a motion to reopen authorized by Congress, during a voluntary departure period authorized by Congress, for suspension of deportation relief authorized by Congress. Their fatal deficiency was an inability to compel an immigration judge to act promptly on their motion. In no other context do we penalize an applicant for a tribunal’s failure to act; we ought not do so here.

. Petitioners had resided in the United States continuously for more than seven years and their moral character was not in question. See 8 U.S.C. § 1254 (a).

. Those few motions to reopen decided within the brief period commonly granted for voluntary departure, see 8 U.S.C. §§ 1229c(a)(2), 1229c(b)(2), will be functionally unappealable, since the BIA usually takes a year or more to decide appeals.

.See In re Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 643 , 98 S.Ct. 2053, 2061 , 56 L.Ed.2d 591 (1978) (courts may go beyond literal meaning to avoid absurd result); Tang v. Reno, 77 F.3d 1194 , 1196-97 (9th Cir.1996); see, e.g., Astaire v. Best Film & Video Corp., 116 F.3d 1297, 1301 (9th Cir.1997) (interpreting exemption of "films” and "television programs” to include videotapes, as result would otherwise be absurd).

The absurdity sanctioned by the majority’s reading falls into the second category described in Beppner v. Alyeska Pipeline Serv. Co., 665 F.2d 868, 872 (9th Cir.1981), which “a court may correct by interpretation.” This "occurs ... when Congress uses more sweeping language than it would if it were attending carefully to fact situations, outside the scope of its purpose, to which the language might be erroneously understood to apply.” Id.

. See Matter of Shaar, Interim Decision 3290, 1996 WL 426889 (BIA 1996) (Guendelsberger, B.M., dissenting).

. In Contreras-Aragon, 852 F.2d at 1094-95 , this court held that the voluntary departure period of an alien who files a petition for review is continued through the period of the court’s review. Similarly, the BIA has held that an appeal from an immigration judge’s decision tolls the voluntary departure period. See Matter of Chouliaris, 16 I. & N. Dec. 168 ; Matter of Villegas Aguirre, Interim Decision 1940, 13 I. & N. Dec. 139 (BIA 1969).

. Under Matter of Barragan, Interim Decision 2097, 13 I. & N. Dec. 759 (BIA 1971), an alien's departure breaks the continuity of physical presence for purposes of eligibility for suspension of deportation.

. According to petitioners, at least one INS district office has instituted a blanket policy of denying all voluntary departure extension requests based on the fact that a motion to reopen has been filed but has not yet been acted on by an immigration judge.

. “Due process, in deportation proceedings, includes the right to a full and fair hearing,” see Sharma v. INS, 89 F.3d 545, 548 (9th Cir. 1996) (internal quotation marks omitted), and the “opportunity to be heard at a meaningful time and in a meaningful manner,” see Mathews v. El-dridge, 424 U.S. 319, 333 , 96 S.Ct. 893, 902 , 47 L.Ed.2d 18 (1976) (internal quotation marks omitted); see also de la Llana-Castellon v. INS, 16 F.3d 1093 , 1096 (10th Cir.1994) ("[due process] requires that the decisionmaker actually consider the evidence and argument that a party presents”).

.See Rhoa-Zamora v. INS, 971 F.2d 26 , 34 n. 8 (7th Cir. 1992) ("We do note that in order for the motion to reopen procedure to satisfy the requirements of due process it must provide a ‘a meaningful opportunity to be heard.’ Thus, as the D.C. Circuit recently recognized, it would raise a serious due process problem if the Board did not actually consider these motions but simply filed them away in some obscure nook or cranny until the petitioner in question could be deported.”) (internal citations omitted).

. See Paointhara v. INS, 708 F.2d 472, 473 (9th Cir.1983) ("Classifications among aliens satisfy equal protection if supported by a rational basis.”); see also Raya-Ledesma v. INS, 55 F.3d 418, 419 (9th Cir.1995).

. Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527 , 109 S.Ct. 1981, 1994 , 104 L.Ed.2d 557 (1989) (Scalia, J., concurring) ("We are confronted here with a statute which, if interpreted literally, produces an absurd, and perhaps unconstitutional, result.”).

. See Almero v. INS, 18 F.3d 757, 760 (9th ' Cir.1994) ("To determine the plain meaning and purpose of a portion of a statute, we must examine not only the specific provisions at issue, but also the structure of the law as a whole including its object and policy.”).

.See United States v. Witkovich, 353 U.S. 194, 199 , 77 S.Ct. 779, 782 , 1 L.Ed.2d 765 (1957); Heppner v. Alyeska Pipeline Service Co., 665 F.2d 868, 872 (9th Cir.1981) ("Although the language of section 1653 is facially clear and unambiguous, the plain meaning rule, as currently articulated by the Supreme Court, requires us to approach the statute, not with mechanical literalism, but with the purpose of implementing Congressional intent.”); see also United States v. Alvarez-Sanchez, 975 F.2d 1396, 1400 (9th Cir.1992), rev'd on other grounds, 511 U.S. 350 , 114 S.Ct. 1599 , 128 L.Ed.2d 319 (1994) ("Courts must not make a fetish of construing statutes in a literal fashion. Our role is not that of a super-grammarian obsessed with the plain meaning of language but rather that of perceptive diviner of congres *963 sional intent.”) (citing United States v. Monia, 317 U.S. 424, 431 , 63 S.Ct. 409, 412-13 , 87 L.Ed. 376 (1943) (Frankfurter, J., dissenting) ("The notion that because the words of a statute are plain, its meaning is also plain, is merely pernicious oversimplification.”); Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir.1944) (Hand, J., concurring) ("There is no surer way to misread any document than to read it literally ...”)).

.Congress took no steps to curtail these "exceptions,” in IMMACT 90 or its three subsequent revisions of the INA. In light of the Ninth Circuit’s en banc decision in Contreras-Aragon, decided shortly before Congress began hearings on IMMACT 90, Congress’ silence is consistent with its acceptance of these exceptions to Section 1252b(e)(2)(A)’s bar.

Furthermore, neither the INS, BIA, nor this court have acted to conform their regulations and decisions to an absolute bar. In this regard, the Supreme Court has noted "that the weight of an administrative interpretation will depend, among other things, upon its consistency with earlier and later pronouncements of an agency." Morton v. Ruiz, 415 U.S. 199, 237 , 94 S.Ct. 1055, 1075 , 39 L.Ed.2d 270 (1974) (internal quotation marks omitted).

. See Weissman v. Congregation Shaare Emeth, 38 F.3d 1038, 1041 (8th Cir.1994) (holding Age Discrimination in Employment Act is "silent on the question” at hand, contrary to "a literal reading of the statut[e]”); United States v. Blackston, 940 F.2d 877, 883-84 (3d Cir.1991) (concluding "latent ambiguity” exists, notwithstanding "relatively straightforward language”).

. The vast majority of BIA decisions are unanimous; this one was sharply divided (7-5), with substantial dissent expressed in four separate opinions. A WESTLAW search of BIA decisions dating back to 1940 reveals the rarity of such division. Dissents are infrequent; in those en banc cases in which there is dissent, the vote is rarely close; publication of four, separate dissents is unprecedented.

. In light of the ambiguity of Section 1252b(e)(2)(A), we should heed the "longstanding principle of construing ... lingering ambiguities in deportation statutes in favor of the alien.” Cardoza-Fonseca, 480 U.S. at 449 , 107 S.Ct. at 1222 .

. The Attorney General’s report found little or no abuse of motions to reopen. Immigration judges surveyed "unanimously concluded that there was no pattern of abuse." See Attorney General’s Report to Congress on Consolidation of Requests for Relief from Deportation, reported in 68 Interpreter Releases 907, 908 (July 22, 1991).

. Congress rejected language from a bill introduced by Congressman Lamar Smith, which would have limited motions to reopen in all situations. See Iris Gomez, The Consequences of Nonappearance: Interpreting New Section 242B of the Immigration and Nationality Act, 30 San Diego L.Rev. 75, 123 (1993).