by Curtis Pierce and John Eric Marot**

According to Supreme Court Justice Louis Brandeis, deportation can deprive an individual of "life, or of all that makes life worth living." A supposed alternative to deportation is a form of relief known as "voluntary departure." Often referred to as a "privilege," voluntary departure used to provide a significant benefit when other forms of relief, such as suspension of deportation, were denied and when the recipient had another way of eventually immigrating to the U.S. Whereas a deported alien needed special permission to return and faced criminal penalties if he or she attempted to return surreptitiously, an alien who voluntarily departed was not subject to such sanctions.

The passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) imposed strict new requirements before individuals in removal proceedings may be granted voluntary departure. When these requirements are considered in conjunction with the 10-year bar on reentry for aliens who have resided in the U.S. unlawfully for over one year, the distinction between voluntary departure and removal becomes blurred.

Prior to the IIRIRA, five years of good moral character, financial means, and a pledge to actually depart the U.S. were essentially all that was required in order to obtain the "privilege" of voluntary departure. In the post-IIRIRA era, an applicant may now have to show a minimum of one year of presence in the U.S., present a travel document, and even agree to post a bond before an Immigration Judge (IJ) can grant voluntary departure. Presumably, the purpose behind these requirements is that, if satisfied, they will ensure the respondent's actual departure from the U.S.

This article examines some of the new requirements for obtaining voluntary departure, particularly, the posting of the bond. It explores the bond requirement and addresses the issue of what an individual gains by posting the bond and whether such posting actually helps ensure the alien's departure from the U.S. The article also analyzes the problem of the 10-year bar when viewed in conjunction with the conditions for obtaining voluntary departure. Specifically, it addresses whether there is truly any difference between the effects of an order of removal and a grant of voluntary departure. Is voluntary departure really a privilege, or is the term "voluntary departure" merely a euphemism for expulsion from the U.S.?

VOLUNTARY DEPARTURE BEFORE THE IIRIRA
Voluntary departure was originally developed and implemented by administrative officers before being incorporated into the statutes in 1940. The 1940 statute provided for voluntary departure before removal proceedings in lieu of deportation to any alien "who has proved good moral character for the preceding five years." The alien could then "depart the United States to any country of his choice at his own expense." The Attorney General was granted the right to deny such relief to any individual whom the Attorney General reasonably believed fell into statutorily specified categories, including drug dealers, document falsifiers, subversives, criminals, and participants in Nazi persecutions. The Anti-Drug Abuse Act of 1988 (ADAA) additionally precluded the grant of voluntary departure to an alien convicted of an aggravated felony.

The regulations eventually allowed voluntary departure to be granted by INS officers in a number of contexts for individuals who were not in deportation proceedings. For example, before the enactment of the Refugee Act of 1980, a device known as extended voluntary departure came into widespread use to allow those unable to return to their homeland owing to ongoing hostilities to prolong their stay in the U.S. Voluntary departure was also available in a variety of other circumstances, usually with the aim of promoting family unity.

As with the current statute, the pre-IIRIRA statute distinguished between voluntary departure sought prior to, as opposed to during, deportation proceedings. Individuals in deportation proceedings had to show good moral character for the preceding five years, as set forth by the 1940 statute. The regulations added the requirement that the applicant have the willingness and means to depart from the U.S. Prior to the IIRIRA, most voluntary departure orders stated that if the respondent did not depart by the specified date, the order would become a deportation order. Also, there was no limit to the length of voluntary departure time allowed. The District Director had the authority to extend the term or add terms and conditions.

The Immigration Act of 1990 amended the INA so that any alien who remained in the U.S. after a grant of voluntary departure would, other than for exceptional circumstances, be ineligible for discretionary forms of relief such as voluntary departure, suspension of deportation, adjustment of status, registry, and change of nonimmigrant status "for a period of 5 years after the scheduled date of departure or the date of unlawful reentry, respectively."

VOLUNTARY DEPARTURE AFTER THE IIRIRA
Section 304(a)(3) of the IIRIRA, which added § 240B to the INA, imposed dramatic restrictions on the privilege of voluntary departure. These restrictions pertain to the length of time voluntary departure may be granted as well as the conditions for obtaining it. In many the ways, the IIRIRA standard is much harder for aliens to meet, and mandates harsh penalties for aliens who fail to comply with the conditions of a grant. For example, INA § 240B(d) imposes a civil penalty of not less than $1,000 and not more than $5,000 for aliens who fail to depart by the period specified. That section also renders such aliens ineligible for a period of 10 years for the relief of cancellation of removal, adjustment of status, change of status, and registry.

As with the prior law, the post-IIRIRA statute distinguishes between voluntary departure granted by the INS and voluntary departure granted by the IJ.

. Voluntary Departure Before the Service
An alien who is not in removal proceedings may apply for voluntary departure directly with the Service. Presumably, voluntary departure in this context would be sought by an alien who had applied for, and been denied, a particular status or visa and who then risked being placed in removal proceedings. In such a scenario, the Service can grant voluntary departure for up to 120 days. The regulations further specify that the "Service may attach to the granting of voluntary departure any conditions it deems necessary to ensure the alien's timely departure from the United States, including the posting of a bond, continued detention pending departure, and removal under safeguards." The alien is also required to present a travel document, such as a passport, permitting lawful entry into the country to which he or she is traveling. The Service may hold such documents for enough time to investigate their authenticity.

The INS cannot grant voluntary departure unless the alien requests it. This provision arguably protects the alien from having the INS order him or her to leave the country pursuant to a grant of voluntary departure when such relief has not been requested.

Even after removal proceedings have begun, the INS can still grant voluntary departure. The regulations allow the INS to revoke a grant of voluntary departure at any time, however, if the INS determines that the application should not have been granted in the first place. Although the Service does not have to notify the applicant before revoking the grant of voluntary departure, the applicant must still receive written notification of the revocation. There are no appeals from such revocation.

. Voluntary Departure Before the IJ
Under the IIRIRA, the INA distinguishes between voluntary departure granted by the IJ at the outset of a hearing and voluntary departure granted by the IJ at the conclusion of a removal proceeding. The former is easier to obtain and provides for a longer duration. Pursuant to INA § 240B(a), voluntary departure before the conclusion of removal proceedings can be granted for a maximum of 120 days and is subject to the following conditions set forth in the regulations: the alien must (1) make the request before or at the master calendar hearing at which the case is initially calendared for a merits hearing; (2) make "no additional requests for relief"; (3) concede removability; (4) waive appeal of all issues; and (5) not have been convicted of an aggravated felony and not be deportable under INA § 237(a)(4) (security grounds, including terrorism).

The language of this regulation is vague and contradictory. As noted above, to apply for voluntary departure pursuant to INA § 240B(a), an alien must forego the right to apply for a form of relief (such as asylum or cancellation of removal) that would normally be presented at a merits hearing. This is what is presumably meant by making "no additional requests for relief." The regulation also states that this request for voluntary departure must be made at "the master calendar hearing at which the case is initially calendared for a merits hearing." Yet if an alien makes 'no additional requests for relief,' the case would in most instances never be calendared for a merits hearing. Hence, the regulation leaves much room for interpretation.

In immigration court, practitioners often apply for voluntary departure "in the alternative," in conjunction with another form of relief. This allows an applicant who is unsuccessful in obtaining a primary form of relief such as asylum, adjustment of status, or cancellation of removal to still receive voluntary departure. Neither the Act nor the regulations use the term voluntary departure "in the alternative." They do, however, discuss voluntary departure "at the conclusion" of the removal proceedings, which is the functional equivalent.

The standards of eligibility for voluntary departure at the conclusion of removal proceedings are quite different from those during removal proceedings, and far more difficult for the alien to meet. At the conclusion of proceedings, the IJ, pursuant to INA § 240B(b), may grant the respondent only up to 60 days, and the following conditions must be met: (1) the alien must have been physically present in the U.S. for at least one year when he or she was served with the Notice to Appear; (2) the alien must have five years of good moral character (this is consistent with pre-IIRIRA law); (3) the alien must not have been convicted of an aggravated felony and must not be deportable under the security grounds of INA § 237(a); and (4) the alien must establish by clear and convincing evidence that he or she has the means and intends to depart the U.S.

To obtain voluntary departure at the master calendar hearing pursuant to INA § 240B(a), an alien does not need to show good moral character. This is one aspect of the IIRIRA that is more generous than the pre-IIRIRA law, which required good moral character in the preceding five years. Nevertheless, while good moral character per se is not required to obtain voluntary departure at this stage of a removal proceeding, the alien must not have been convicted of an aggravated felony or be deportable for espionage or security violations.

Also noteworthy is the fact that an alien who applies for voluntary departure pursuant to INA § 240B(a) does not have to show that he or she has the financial means to depart from the U.S., as was required by the regulations applying the pre-IIRIRA statute.

Certain individuals are ineligible for voluntary departure. First, aliens who fail to appear at a removal hearing and who are then ordered removed in absentia are ineligible for voluntary departure for 10 years. Second, aliens who were previously found inadmissible under INA § 212(a)(6)(A) (present without admission or parole) and who were granted voluntary departure under INA § 240B are ineligible for another grant of voluntary departure. By definition, this includes only aliens found inadmissible and granted voluntary departure on or after April 1, 1997, the effective date of the pertinent IIRIRA provisions. Third, aliens granted voluntary departure who do not depart within the time specifically allotted are ineligible for voluntary departure, cancellation of removal, adjustment of status, change of nonimmigrant classification and registry for 10 years. Finally, a person granted voluntary departure who fails to depart is subject to a civil penalty of between $1,000 and $5,000.

In addition, the regulations specifically require the IJ to couple a grant of voluntary departure with an alternate order of removal. Therefore, an alien who overstays his or her voluntary departure by even one day has in effect received an order of removal.

This raises the question of whether the statute cited above, which penalizes aliens who fail to depart by the time allotted, is really necessary. Because the act of overstaying a grant of voluntary departure converts this grant into an order of removal, the alien who overstays is automatically faced with the consequences of removal. These consequences, which are discussed below, generally include being inadmissible to the U.S. for a period of five, 10, or 20 years. An outstanding order of removal will usually preclude an alien from obtaining discretionary forms of relief, rendering the penalties set forth by INA § 240B(d) somewhat superfluous.

Obtaining voluntary departure at the master calendar hearing is easier and more advantageous than receiving it at the "conclusion" of proceedings. Why the distinction between voluntary departure "prior to completion" and voluntary departure "at the conclusion" of removal proceedings? It would appear that the drafters of the legislation intended to deter aliens from pursuing baseless claims and punish aliens for having vigorously pursued their rights. If someone simply gives up the right to apply for asylum, he or she can obtain the privilege of voluntary departure much more easily. As the Board of Immigration Appeals (BIA or Board) noted in Matter of Arguelles, "Immigration Judges can use section 240B(a) relief to quickly and efficiently dispose of numerous cases on their docket, where appropriate. We accept the need for such a tool and support its purpose."

In both deportation and removal hearings, voluntary departure rests within the discretion of the IJ. An IJ may be justified in denying voluntary departure even if the alien is statutorily eligible. This point was reinforced by the Arguelles case, in which the BIA analyzed the current procedures for requesting voluntary departure pursuant to INA § 240B during the three different stages (i.e., before proceedings commence, prior to the conclusion of the removal hearing, or at the conclusion of the hearing), and compared the requirements for each stage to those of former INA § 244(e). In Arguelles, the alien had been granted voluntary departure five times under the prior law, had left the U.S., and reentered each time without permission. He was nonetheless still eligible to apply for voluntary departure under the current law. The IJ denied the application in his discretion, however, after finding that the equities were outweighed by the adverse factors.

Board Member Lory Rosenberg noted in her Arguelles dissent that in the 1988 case of Contreras-Aragon v. INS, the Ninth Circuit reaffirmed its understanding that "[t]he purpose of authorizing voluntary departure in lieu of deportation is to effect the alien's prompt departure without further trouble to the Service." This raises the question of whether voluntary departure actually has this effect. Clearly, the respondent in Arguelles was not deterred from returning unlawfully to the U.S. even after having promised five times to leave voluntarily.

ARRIVING ALIENS
According to INA § 240B(a)(4), "in the case of an alien who is arriving in the U.S. and with respect to whom proceedings under [§ 240] are (or would otherwise be) initiated at the time of such alien's arrival," voluntary departure is not available. This section only applies to voluntary departure granted prior to completion of proceedings pursuant to INA § 240(a). As a practical matter, however, it would be difficult in most cases for an arriving alien to be eligible for voluntary departure at the conclusion of proceedings since this requires one year of physical presence in the U.S. immediately preceding service of an NTA.

Nevertheless, if an alien travels to the U.S. with an advance parole document, applies for adjustment of status, and receives a denial, he or she could also be placed in removal proceedings and charged with being an arriving alien. Yet due to the wording of the statute, he or she should still be able to apply for voluntary departure pursuant to INA § 240B(a) if he or she had been in the U.S. for one year prior to being served with the NTA. The limiting language of INA § 240B(a)(4) suggests that it only applies to aliens arriving at a port of entry.

THE BOND REQUIREMENT
When voluntary departure is granted at the conclusion of proceedings, the alien is required to post a bond set by the IJ "in an amount necessary to ensure that the alien departs within the time specified, but in no case less than $500." Hence, shortly after a hearing in which voluntary departure is granted in the alternative (but a form of relief which would permit the respondent to lawfully remain in the U.S. is denied), the respondent who intends to appeal the IJ's decision is faced with the decision of whether to post the bond. According to the regulations, "[t]he voluntary departure bond shall be posted with the district director within 5 business days of the immigration judge's order granting voluntary departure, and the district director may, at his or her discretion, hold the alien in custody until the bond is posted. If the bond is not posted within 5 business days, the voluntary departure order shall vacate automatically and the alternate order of removal will take effect on the following day." Because a respondent also has 30 days to appeal the IJ's decision, however, such appeal would also allow him or her to remain in the U.S. regardless of whether the bond is posted.

For many aliens in removal proceedings, the bond requirement can impose a significant financial burden, especially if an entire family is in proceedings. Because the alien has the right to appeal the IJ's decision, and because the filing of this appeal will permit the alien to remain in the U.S. until the appeal has been decided, the respondent may wonder what is gained by the posting of the voluntary departure bond. If the appeal is successful and the form of relief sought by the alien is granted by the BIA, then the posting of the voluntary departure bond probably will prove to have been unnecessary.

Suppose, on the other hand, that the appeal is unsuccessful. The respondent may still question the necessity of having posted the voluntary departure bond. If the alien proceeds to depart from the U.S., he or she avoids the consequences of removal and may recover the bond. But in reality, how many aliens whose cases are denied by the BIA actually depart from the U.S.? Many of these respondents have resided in the U.S. for several years. Many of them have children born here and many other ties that make "voluntary" departure an unlikely act. If the alien fails to depart after posting a bond and losing the appeal, the bond is forfeited and the voluntary departure becomes an order of removal.

Practitioners may be tempted to advise their client that there is no benefit in posting the voluntary departure bond if the respondent intends to appeal and has no actual intention of voluntarily departing from the U.S. even if he or she loses the appeal. In most cases, this advice would be technically correct, though possibly unethical. Suppose, however, a respondent appealing his removal case acquires a new immigration benefit, such as an approved visa petition (I-130 or I-140) shortly after the decision of the BIA upholding the IJ's decision. In this scenario, the respondent would need to be in a period of voluntary departure in order to effectuate properly a motion to reopen and remand, and the posting of the bond will have proven absolutely necessary. Having posted bond, the alien will not be faced with the consequences of an order of removal or of trying to reopen a case after voluntary departure has lapsed.

It should be noted that if an alien attempts a timely motion to reopen following an order of removal as opposed to a grant of voluntary departure, this in some cases may actually be easier to obtain. As Shaar demonstrates, a motion to reopen following voluntary departure must be adjudicated within the period of voluntary departure. Otherwise, the bars on discretionary relief come into play. An alien who has been ordered removed and seeks reopening, however, does not have the additional hurdle of getting his motion adjudicated before voluntary departure lapses. An alien who has been ordered removed must simply comply with the requirement of filing his motion within 90 days of the final administrative order.

REMOVAL
In the event of removal, an alien is barred from entering the U.S. for a period of five, 10 or 20 years. For arriving aliens, the period is five years. In the case of a subsequent removal, the bar is 20 years. An aggravated felon is not permitted to return at any time. In most other cases, the period is 10 years. If the alien reenters unlawfully after removal, the INS may reinstate removal at any time pursuant to INA § 241(a)(5). Such an alien also would be inadmissible under INA § 212(a)(9)(C).

Clearly, an order of removal imposes a severe obstacle to someone seeking to reside lawfully in the U.S. Yet, a grant of voluntary departure can in many cases impose an equally severe impediment.

THREE- AND 10-YEAR BARS
The post-IIRIRA provisions regarding the three and ten year bars support the argument that there is often little difference between an order of removal and the "privilege" of voluntary departure. According to INA § 212(a)(9)(B)(i), an alien who departs after having been unlawfully present in the U.S. for a period of more than 180 days but less than one year is barred from reentering the U.S. for three years. Similarly, an alien who was unlawfully present for one year or more and who departs the U.S. is barred for 10 years from seeking readmission to the U.S. Although individuals in removal proceedings have the right to remain in the U.S., the period in removal proceedings is not considered "lawful presence."

Thus, an individual granted voluntary departure after one year of unlawful presence in the U.S. must wait 10 years outside the U.S. before being permitted to reenter. It should be noted that because of the wording of the statute, an alien who receives an order of voluntary departure during removal proceedings after 180 days of unlawful presence but less than one year is not subject to the three-year bar.

The illogic of this becomes even clearer when one considers that in order to be eligible to apply for voluntary departure in the alternative, or at the "conclusion" of proceedings, an alien must be in the U.S. at least one year prior to the service of the NTA. Therefore, the respondent who is eligible for voluntary departure in the alternative is also in many cases subject to the 10-year bar.

INA § 212(a)(9)(B)(iii) provides for limited exceptions to unlawful presence. Minors, beneficiaries of family unity protection, battered women and children, and aliens with a "bona fide application for asylum pending" who are not employed without authorization "during such period" are not considered to be unlawfully present.

Therefore, suppose an asylum applicant (with no other basis for establishing lawful presence) loses his asylum case before an IJ but receives the alternative relief of 60 days of voluntary departure. If the applicant leaves the U.S. voluntarily and later becomes eligible for a visa, he will not face the 10-year bar provided he can establish that he did not work without authorization during the pendency of his asylum claim and can also establish (most likely before a consular officer in the country from which he sought protection) that his asylum application was in fact "bona fide."

WAIVERS
INA § 212(a)(9)(B)(v) provides for a waiver of the three-and 10-year bars if the alien can demonstrate "extreme hardship" to his citizen or lawful permanent resident spouse or parent. To apply for this waiver, the applicant must present Form I-601 to a consular officer. The application should also include proof of the hardship to the qualifying relative. Such proof will normally include declarations by the qualifying relative, psychological evaluations, medical reports, et cetera. The waiver applications are forwarded to the INS and adjudicated after a possible investigation. The wait at some consulates can be as long as eight months. (In Ciudad Juarez, the wait is approximately nine months.) During the adjudication process, the applicant must remain outside the U.S.

Following an order of removal, if an alien seeks to re-enter the U.S. within the period of time he or she is barred (i.e., five to 20 years), the alien must file an I-212 application. Generally, these applications are filed with the district director having jurisdiction over the place where removal proceedings took place or if the applicant is in the U.S., the district director having jurisdiction over the alien's place of residence. The application must demonstrate why the discretionary relief is warranted in this situation.

Generally, the I-212 waiver takes several years to be processed. Although the statute (INA § 212(9)(A)(iii)) suggests that the alien must be outside the U.S. to obtain this waiver, the regulations allow for the possibility of obtaining this form of relief if the alien is present in the U.S. These regulations, however, are problematic for two reasons. If an alien has unlawfully reentered the U.S. after an order of removal, INA § 241(a)(5) subjects him or her to automatic reinstatement of his order of removal. In addition, the alien who reenters unlawfully after removal is inadmissible pursuant to INA § 212(a)(9)(C).

If on the other hand the alien has not reentered the U.S. unlawfully but has simply remained in the U.S. following an order of removal by an IJ, jurisdiction remains with the Immigration Court. Therefore, the alien must comply with the strict requirements of having his or her case reopened in order to seek relief. Motions to reopen must generally be filed within 90 days of the final administrative decision.

CONCLUSION
It appears that the drafters of the IIRIRA were blind to the realities of aliens facing removal. An alien who has resided in the U.S. for several years, albeit illegally, is not likely to leave the U.S. "voluntarily." Furthermore, it is absurd to suggest that individuals facing removal from the U.S. would abandon the right to apply for a form of relief by the temptation of 60 additional days of voluntary departure. Finally, while the bond requirement may have been intended to assure an individual's voluntary departure from the U.S., it probably has only served to confuse aliens and, perhaps, even many attorneys, as to what is gained by the posting of this bond.

The conclusion seems inescapable that the sections of the INA dealing with voluntary departure and those dealing with unlawful presence were written independently of each other. To be eligible for voluntary departure at the conclusion of proceedings, an alien is often subject to the 10-year bar. When one considers this issue, combined with the fact that overstaying a grant of voluntary departure issued by an IJ by even one day is the equivalent of an order of removal, it is apparent that for many individuals facing expulsion from the U.S., there is no significant difference between a grant of voluntary departure and an order of removal.

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* Curtis Pierce practices immigration law in Los Angeles, California. He has successfully argued many cases before the Ninth Circuit Court of Appeals, including Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999). He is a graduate of Loyola Law School in Los Angeles and has a B.A. in political science from UCLA. From 1992-1995, he taught constitutional law at the Sorbonne (University of Paris). His firm's web site may be found at http://www.cpvisa.com.

** John Eric Marot has a Juris Doctor from Loyola Law School in Los Angeles and a Ph.D. in history from UCLA. He has taught history in the University of California and Cal State University systems. The authors wish to acknowledge the invaluable assistance of the following attorneys: Carl Shusterman, Linton Joaquin, Lee O'Connor, Brian Bates, Hon. Juan Osuna, Kathy Alfred, Claudia Slovinsky, Jacqueline Baronian, Claire Cifuentes, Victor Nieblas, Glenn Kawahara, Wade Chernick, Susan Hill, Paul Medved, Marci Ancel, John Gallagher, Max Danziger, Richard Fraade, Jennifer Oltarsh, Alary Piibe, Alan Diamante, Steven Morley, and Garish Sarin.

[1] Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).

[1] Pub. L. No. 104-208, 110 Stat. 3009.

[1] See INA § 212(a)(9)(B)(i)(II).

[1] Section 19(c) and (d), Immigration Act of 1917, as amended by Alien Registration Act of 1940, § 20, 54 Stat. 672-673.

[1] Former INA § 241(a)(2)(C).

[1] Anti-Drug Abuse Act of 1988 (ADAA), § 7343(b), (Pub. L. No. 100-690, 102 Stat. 4181), amending former INA § 244(e)(2). The immigration-related provisions of the ADAA are reported on and reproduced in 65 Interpreter Releases 1119 (Oct. 31, 1988).

[1] 8 CFR § 242.5(a)(2) (1995).

[1] Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 103.

[1] Former INA §§ 242(b) and 244(e), as amended by § 545 of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978.

[1] Former 8 CFR § 244.1.

[1] See, e.g., Matter of Chang, 10 I&N Dec. 14 (BIA 1962). See also Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 74.02[4] (rev. ed. 1999).

[1] See, e.g., Matter of Chouliaris, 16 I&N Dec. 168 (BIA 1977). See also Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 74.02[4] (rev. ed. 1999).

[1] See, e.g., Matter of Palmieri 10 I&N Dec. 187 (BIA 1963). See also Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 74.02[4] (rev. ed. 1999).

[1] Former INA § 242B(e)(2). The bar to discretionary relief only applied to aliens provided both written and oral notice of the consequences of failure to depart.

[1] See 8 CFR §§ 240.25, 240.26.

[1] 8 CFR § 240.25(c).

[1] 8 CFR § 240.25(b).

[1] Id.

[1] 8 CFR § 240.25(c). "Voluntary departure may not be granted unless the alien requests such voluntary departure and agrees to its terms and conditions."

[1] 8 CFR § 240.25(d). If the Service agrees to voluntary departure after proceedings have commenced, it may either "join in a motion to terminate the proceedings" or "join in a motion asking the immigration judge to permit voluntary departure."

[1] 8 CFR § 240.25(f).

[1] Id.

[1] INA § 240B.

[1] 8 CFR § 240.26(b)(1)(i).

[1] See 8 CFR § 240.26(b)(1)(i)(B).

[1] 8 CFR § 240.26(b)(1)(i)(A) (emphasis added).

[1] Citing this regulation, the Board of Immigration Appeals (BIA or Board) in Matter of Arguelles noted that "[I]t is not necessary that the alien request the relief [voluntary departure] at the first master calendar hearing." Int. Dec. 339, at 4 (BIA 1999), reported on in 76 Interpreter Releases 1189, 1193 (Aug. 9, 1999).

[1] INA § 240B(b), 8 CFR § 240.26(c).

[1] INA § 240B(b), 8 CFR § 240.26(c).

[1] See former INA § 244(e).

[1] See INA § 101(f) for a list of what precludes an individual from establishing "good moral character."

[1] INA § 240B(a)(1), 8 CFR § 240.26(b)(1)(i)(E).

[1] Former 8 CFR § 244.1.

[1] INA § 240B(d).

[1] INA § 240B(c).

[1] INA § 240B(d). As noted above, former INA § 242B(e)(2) stated that an alien who remained in the U.S. after an agreed date of voluntary departure "other than because of exceptional circumstances" would be ineligible for five years for voluntary departure, suspension of deportation, adjustment of status, and registry. In the current statute, five years has been changed to 10 and there is no exception for "exceptional circumstances." See INA § 240B(d). It should also be noted that these forms of discretionary relief are all sought in the U.S. Therefore, the ability to procure a visa from a U.S. consulate is not expressly punished by overstaying a period of voluntary departure.

[1] INA § 240B(d).

[1] 8 CFR § 240.26(d).

[1] See INA § 212(a)(9)(A).

[1] Arguelles, Int. Dec. 339 at 8.

[1] The fact that five previous unlawful reentries following five respective grants of voluntary departure did not create a statutory bar to voluntary departure is very likely a legislative oversight. Significantly, the current statute states that an alien who previously was permitted to depart voluntarily under INA § 240B after having been found inadmissible under INA § 212(a)(6)(A), which pertains to aliens present without admission or parole, is not eligible for voluntary departure. INA § 240B(c).

[1] Contreras-Aragon v. INS, 852 F.2d 1088 (9th Cir. 1988), reported on in 65 Interpreter Releases 792 (Aug. 8, 1988).

[1] Arguelles, Int. Dec. 3399 at 9, quoting Contreras-Aragon, 852 F.2d at 1093.

[1] According to 8 CFR § 1.1(q), "the term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry." An arriving alien who is ineligible for voluntary departure may seek to withdraw his request for admission and thereby avoid the consequences of removal.

[1] INA § 240B(b)(1)(A), 8 CFR § 240.26(c)(1)(i).

[1] An alien who attempts to enter with advance parole but is denied entry may be charged as an arriving alien but may not be placed in expedited removal. See 8 CFR § 1.1(q).

[1] 8 CFR § 240.26(c)(3).

[1] Id.

[1] 8 CFR § 3.3, 8 CFR § 240.15.

[1] There are several potential scenarios that are not addressed by the regulations. Suppose a respondent loses his asylum case in court and receives voluntary departure in the alternative. He proceeds to appeal to the BIA without having paid the bond. Can the BIA still grant voluntary departure? It would be prudent for practitioners to assume not. Yet the regulations do not provide a definitive answer to this question.

[1] See 8 CFR § 240.26(c)(3), 8 CFR § 240.26(d).

[1] See, e.g., Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), discussed in Schmidt and Elliot, "Precedent Decisions of the Board of Immigration Appeals: An Update," 73 Interpreter Releases 1101, 1108 (Aug. 19, 1996). See also 75 Interpreter Releases 810, 812 (June 8, 1998).

[1] 8 CFR § 3.2 (c)(2), 8 CFR § 3.23(b)(1). See Matter of Goolcharan, 23 I&N Dec. 5 (BIA 2001) for a definition of final administrative order. See also Matter of Singh, 21 I&N Dec. 998 (BIA 1997), which involved a motion to reopen after an in absentia hearing and explained why Shaar is inapplicable.

[1] INA § 212(a)(9)(A).

[1] INA § 212(a)(9)(A)(i).

[1] Id.

[1] Id. But see 8 CFR § 212.2(a) which suggests that an alien convicted of an aggravated felony who has remained outside the U.S. for 20 consecutive years after "deportation or removal" may be permitted to re-enter.

[1] Id.

[1] As noted above in the discussion of Arguelles, however, an alien who reenters unlawfully after a timely voluntary departure should not have this problem of being subject to automatic reinstatement of the order of removal. But see the recent case Gallo-Alvarez v. Ashcroft, Nos. 00-35238, 99-71038, 00-35289, 2001 WL 1104626 (9th Cir. Sept. 21, 2001), in which a respondent who had been granted voluntary departure but denied suspension of deportation, departed the U.S. pending his appeal to the BIA. The 9th Circuit held that INA § 241(a)(5) applies to individuals who reenter the U.S. unlawfully following grants of voluntary departure as well as orders of deportation. Gallo-Alvarez is reported on in 78 Interpreter Releases 1640 (Oct. 22, 2001).

[1] See INA §212(a)(9)(B)(v), which provides for a waiver if the alien can demonstrate "extreme hardship" to his citizen or lawful permanent resident spouse or parent.

[1] See INA § 212(a)(9)(B)(i). See also Dept. of State Cable dated Apr. 4, 1998, reprinted in 17 AILA Monthly Mailing 5 (May 1998), at 468, 471 et. seq.

[1] See INA § 240B(b)(1)(a).

[1] It should also be noted that students and exchange visitors with a D/S (duration of status) visa are not considered to be unlawfully present until there is a specific determination made by the INS or an IJ. Likewise, applicants with a pending application for adjustment of status are also considered to be in a period of authorized stay. See Memorandum from Michael Pearson, Executive Assoc. Comm'r, INS Office of Field Operations, HQADN 70/21.1.24-P, AD 00-07 (Mar. 3, 2000) at ¶¶ 2B, 3, reported on and reproduced in 77 Interpreter Releases 300, 316-21 (Mar. 13, 2000).

[1] Pursuant to 8 CFR § 208.7(a)(1), an asylum applicant may not request employment authorization until 150 days after the submission of his asylum application. Any delay requested by the applicant tolls the counting toward 150 days. See 8 CFR § 208.7(a)(2). Therefore, if an applicant in immigration court requests additional time to procure an expert witness or to obtain documents from abroad that support his case, this will delay his opportunity to apply for employment authorization.

[1] The INS has defined the term "bona fide" as having "any arguable basis in law or fact." See Memorandum from INS Gen'l Counsel Bo Cooper, HQPGM 70/6.2.6 (June 8, 1999), reported on and reprinted in 76 Interpreter Releases 1289, 1304-10 (Aug. 30, 1999). The determination of whether or not the application was in fact "bona fide" is made by the Headquarters Office of Asylum.

[1] For a discussion of hardship, see Pierce, "The Benefits of Hardship: Historical Analysis and Current Standards For Avoiding Removal," 76 Interpreter Releases 405 (Mar. 15, 1999).

[1] See Meritt and Upadhye, "Consular Processing: Immigrants and Nonimmigrants," 2001-02 Immigration & Nationality Law Handbook, vol. I (American Immigration Lawyers Association (AILA) 2001).

[1] See Kenmore and Slovinsky, "Waivers 2000," 2001-02 Immigration & Nationality Law Handbook, vol. II (AILA 2001).

[1] See 8 CFR § 212.2 An alien seeking a nonimmigrant visa following removal or deportation requests the waiver before a consular officer. Also, an alien filing an I-212 waiver in conjunction with an I-601 for a waiver of excludability under § 212(g), (h), or (i), should file directly with the consulate having jurisdiction over the alien's place of residence. Interestingly, the regulations do not specify where the I-212 is filed for those aliens who need to concurrently file an I-601 based on INA § 212(a)(9)(B)(v), i.e., unlawful presence.

[1] According to Matter of Tin, the adjudicator must consider the following factors: the basis for the deportation, the recency of the deportation, length of residence in the U.S., moral character of the applicant, his respect for law and order, evidence of reformation and rehabilitation, his family responsibilities, any inadmissibility to the U.S. under other sections of law, and hardship involving himself and others. 14 I&N Dec. 371 (Reg'l Comm'r 1973). See also Morley, "Seeking Permission To Reapply For Admission After Deportation or Removal," 2000-01 Immigration & Nationality Law Handbook, vol. II (AILA 2001).

[1] See 8 CFR § 212.2(e), 8 CFR § 212.2(g)(ii)(2).

[1] Depending on the jurisdiction, reinstatement can also be applied to orders of deportation. The Ninth Circuit has held that INA § 241(a)(5) does not apply to individuals whose reentry occurred before April 1, 1997, the effective date of the statute. Castro-Cortez v. INS, 239 F.3d 1037 (9th Cir. 2001). For a summary of Castro-Cortez, see 78 Interpreter Releases 327 (Feb. 5, 2001).

[1] The statute allows for the possibility of an I-212 waiver "10 years after the date of the alien's last departure" and for certain victims of domestic violence. INA § 212(a)(9)(C)(ii).

[1] If the alien remains in the U.S. after being ordered removed and has decided to pursue consular processing, the I-212 can sometimes be adjudicated in advance of the consular interview while the alien is in the U.S., albeit unlawfully. If granted, the applicant can take the approved I-212 to the consular interview. He will likely also have to file an I-601 waiver application because of the unlawful presence.

[1] See 8 CFR §§ 3.2(c)(2), 3.23(b)(1).

Copyright © 2001 by West Group. Reprinted with permission of Interpreter Releases.

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