IMMIGRATION LAW & POLICY
Removal Procedures and Defenses |
MATTER OF ARGUELLES-CAMPOS: BIA RULES ON AVAILABILITY OF VOLUNTARY DEPARTURE IN REMOVAL PROCEEDINGS
Immigrants' Rights Update, Vol. 13, No. 4, June 30, 1999
Immigrants' Rights Update, Vol. 13, No. 4, June 30, 1999
The Board of Immigration Appeals has issued a precedent decision regarding the availability of voluntary departure in removal proceedings. The decision explains in detail the BIA’s interpretation of the statutory requirements for this relief, which is considerably more complicated than the relief of voluntary departure available in deportation proceedings.
The decision explains that there are actually three separate forms of voluntary departure in removal proceedings, with different eligibility requirements and conditions, depending upon the particular stage of the proceedings at which the noncitizen requests the relief. These are (1) voluntary departure in lieu of removal proceedings, (2) voluntary departure requested prior to the conclusion of removal proceedings, and (3) voluntary departure requested at the conclusion of removal proceedings.
First, the Immigration and Naturalization Service can grant voluntary departure to noncitizens instead of charging them with removal and initiating proceedings, under 8 CFR section 240.25. The INS does so by serving the individual with Form I-210 (Notice of Action: Voluntary Departure), indicating the period of time permitted for voluntary departure. The INS may grant extensions of this period, but the total time permitted for voluntary departure, including any extensions, cannot exceed 120 days. The INS can attach conditions to the grant of voluntary departure in order to ensure the individual’s timely departure, including requiring posting of a bond, or even continued detention pending departure. The INS can revoke voluntary departure under this regulation without advance notice if it was improperly granted, but the revocation does not prevent the individual from applying for voluntary departure or other relief in removal proceedings.
Second, individuals in removal proceedings can apply for voluntary departure before the conclusion of the proceedings, under INA section 240B(a) ("pre-conclusion voluntary departure"). Under the regulations, this request must be made at or before the master calendar hearing at which the case is initially calendared for a merits hearing. The immigration judge must rule on this request within 30 days. Individuals who request this relief may not request any other relief from removal and must withdraw any other requests for relief that they previously made. They must also have conceded removability and waived appeal of all issues. This relief is not available to individuals who have been convicted of an aggravated felony or who are deportable on national security grounds. The applicant does not need to establish good moral character, although this relief does require that the applicant merit a favorable exercise of discretion. The IJ may grant voluntary departure under this provision for a period no longer than 120 days and may require other conditions to ensure departure, such as the posting of a bond. The applicant must present the INS with documentation sufficient to assure his or her lawful entry into another country. If the IJ is satisfied that the applicant is making diligent efforts to secure such documentation, the IJ may grant voluntary departure subject to the condition that the applicant present such documentation within 60 days.
Third, individuals in removal proceedings may request voluntary departure at the conclusion of the proceedings, under INA section 240B(b). This relief has stricter eligibility requirements. Individuals must have been physically present in the United States for at least one year prior to the time they were served with a notice to appear for removal proceedings. They also must show that they have had good moral character for the five-year period preceding their application for voluntary departure. They cannot have been convicted of an aggravated felony or be removable on national security grounds. They must also show that they have the means to depart the country and possess travel documents allowing them to do so.
In addition, individuals who apply for voluntary departure at the conclusion of removal proceedings must post a bond of at least $500. The decision states that if this bond is not "timely posted" the IJ’s grant of voluntary departure is automatically vacated and an order of removal takes effect the following day. Voluntary departure under this provision may not be granted for a period of more than 60 days.
The decision states that the same factors that are relevant to discretionary determinations regarding voluntary departure in deportation proceedings also apply to the exercise of discretion in removal proceedings. However, an IJ has broader authority to grant voluntary departure prior to the conclusion of removal proceedings than at the conclusion of those proceedings or in deportation proceedings.
Individuals who previously were granted voluntary departure in removal proceedings are ineligible for a second grant, whether prior to or at the conclusion of removal proceedings. However, prior grants of voluntary departure in deportation proceedings do not disqualify applicants from voluntary departure in removal proceedings. Thus, even though the respondent in the case before the BIA had previously been granted voluntary departure in deportation proceedings on five occasions, he was still eligible for voluntary departure in removal proceedings.
In this case, the respondent initially requested to apply for cancellation of removal but withdrew the request and applied for voluntary departure at his second master calendar hearing, before the case was scheduled for a merits hearing. Accordingly, he was eligible for pre-conclusion voluntary departure under INA section 240B(a). However, the IJ denied voluntary departure in the exercise of discretion. Although the respondent had waived appeal in order to apply for pre-conclusion voluntary departure, the BIA concluded that it still had jurisdiction to consider the appeal. Thus, a respondent who waives appeal in order to request pre-conclusion voluntary departure may nonetheless appeal a denial of voluntary departure.
The BIA upheld the IJ’s determination that the respondent did not merit voluntary departure in the exercise of discretion. The BIA noted that the respondent had been granted voluntary departure in deportation proceedings on five occasions, two of them within three months of the initiation of removal proceedings, and each time returned to his two children and their mother in the U.S. The BIA found that the IJ could reasonably conclude that the respondent "simply viewed grants of voluntary departure as a means to avoid immigration proceedings." It agreed with the IJ that the respondent’s past immigration history outweighed the positive equities in his case.
BIA members Edward Grant and Paul Schmidt issued a concurring opinion in which they noted that the statute does not require that pre-conclusion voluntary departure be requested before a merits hearing is calendared. They questioned the wisdom of requiring respondents to opt for this relief before the merits hearing, where "the issues in the case may have become more clear." They also noted that individuals may unwittingly lose the opportunity to seek this relief, both because IJs do not routinely advise respondents that they will become ineligible for the relief at the time that a merits hearing is scheduled, and because respondents—and even BIA members—are often confused as to what constitutes a "master calendar" hearing. They urged IJs to state at each hearing whether it is a master calendar or merits hearing and to advise respondents at the appropriate moment that they may lose eligibility for pre-conclusion voluntary departure.
BIA member Lory Rosenberg issued a separate opinion, further questioning the regulations and especially their requirement that respondents requesting pre-conclusion voluntary departure waive all rights to seek other relief and to appeal. She expressed particular concern with the process by which the respondent in this case essentially lost the right to a removal hearing.
Matter of Arguelles-Campos, Int. Dec. 3399 (BIA June 7, 1999).
