American Immigration Law Foundation

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Practice Advisory

July 2003

Failure to Depart After a Grant of Voluntary Departure: The Consequences and Arguments to Avoid Them

By Beth Werlin

The information in this advisory is accurate and authoritative, but does not substitute for individual legal advice supplied by a lawyer familiar with a client’s case. Additionally, the cases included here are cited as examples only and do not represent an exhaustive search of the case law in all federal circuits. You should research the case law in your own circuit to insure that there is no conflicting precedent and to find additional support.

Consequences of Failure to Depart:
Any person who is granted voluntary departure is subject to civil penalties if he or she "fails voluntarily to depart the United States within the time period specified...." INA § 240B(d) (2003). The person may be subject to a monetary fine, and he or she is barred, for ten years, from being granted cancellation of removal, adjustment of status, change of status, registry, and voluntary departure. Individuals who were granted voluntary departure under former INA § 244(e) (1995)3 are barred from these forms of relief for a five-year period. INA § 242B(e)(2) (1995). Moreover, once a person fails to voluntarily depart, the voluntary departure order becomes a removal order, and any subsequent departure is consider a self-removal. 8 C.F.R. § 240.26(d) (2003); 8 C.F.R. § 241.7 (1995).

Because the penalties for failing to depart are so harsh – particularly after the 1996 changes to the INA – individuals who are eligible for voluntary departure should consider the potential repercussions of a grant of voluntary departure before deciding to apply for this relief. In many cases, a person who is granted voluntary departure may end up in a worse position than someone who is ordered removed. For example, if a person is granted voluntary departure and fails to depart voluntarily, but later becomes eligible to adjust his or her status, the person probably will be found ineligible for adjustment for ten years. However, if this same person had been ordered removed rather than granted voluntary departure, he or she would not be statutorily barred from adjustment and could file a motion to reopen his or her removal proceedings.

Nonetheless, even individuals who have remained in the United States beyond the departure period may be able to establish that the civil penalties for failing to depart do not apply to them. The following are some potential arguments and strategies for arguing that the penalties do not apply. Note, however, that there has been relatively little case law discussing the failure to depart and that the courts have not addressed several of the arguments put forward in the practice advisory.

1. Did the Government Provide Proper Notice of the Consequences of Failing to Depart?
Section 240B(d) of the INA requires that the notice granting voluntary departure inform the person of the consequences of failing to depart. The statute states, "The order permitting the alien to depart voluntarily shall inform the alien of the penalties under this subsection." INA § 240B(d); see Matter of Arguelles, 22 I&N Dec. 811, 818 (BIA 1999). If a person did not receive proper written notice in the order of removal, arguably, the consequences do not apply. C.f. Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001) (individual cannot be expected to comply with address notification requirement unless informed of this obligation). Be sure to check the voluntary departure order carefully because the wrong order form (i.e., without the appropriate warnings) may have been issued.

Under the pre-IIRIRA statute, the notice requirement was somewhat different. See former INA § 242B(e)(2)(B). First, the language of the statute stated specifically that the consequences of failing to depart did not apply unless proper notice was provided. Second, the statute also required that both written and oral notice (in a language the person understands) be provided. If voluntary departure was granted during deportation proceedings, and there is any doubt about whether the oral notice was provided, review the transcript or request to listen to the hearing tapes if no transcript is available.

2. Are There Any Exceptions to the Consequences of Failing to Depart?
Under the pre-IIRIRA statute, the consequences of failing to depart did not apply to any person whose failure to depart was because of "exceptional circumstances." See former INA § 242B(e)(2)(B). The INA defined exceptional circumstances as "exceptional circumstances (such as the serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances) beyond the control of the alien." See former INA § 242B(f)(2). Thus, any person who is or was granted voluntary departure in deportation proceedings will not be subject to the five-year bar if he or she establishes exceptional circumstances for the failure to depart.

3. What Constitutes An Exceptional Circumstance?
There are several pre-IIRIRA cases that discuss what constitutes "exceptional circumstances" in the context of failure to depart. Courts have declined to find exceptional circumstances where an individual requests an extension of the voluntary departure period, but does not receive a response from the government. See Rojas-Reynoso v. INS, 235 F.3d 26 (1st Cir. 2000); Mardones v. McElroy, 197 F.3d 619 (2d Cir. 1999). The Second Circuit has held that the enactment of INA § 245(i) was not an "exceptional circumstance" because the "change in the statute" did not constitute an "absence of physical or moral impossibility." See Mardones, 235 F.2d at 624.

Ineffective assistance of counsel has been found to constitute "exceptional circumstances." See Varela v. INS, 204 F.3d 1237, 1240 n.6 (9th Cir. 2000); see also Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999) (exceptional circumstances in context of failure to appear for deportation hearing); Matter of Grijalva, 21 I&N Dec. 472 (BIA 1996) (same). In Stewart v. INS, 181 F.3d 587 (4th Cir. 1999), however, the court refused to consider petitioner’s claim that ineffective assistance was an exceptional circumstance because petitioner had not raised this claim as prescribed by the Board of Immigration Appeals (BIA) in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). But see Varela, 204 F.3d at 1240 (petitioner’s failure to comply with Lozada requirements was not fatal).

Filing a motion to reopen with the immigration court has not been found to be an exceptional circumstance. Shaar v. INS, 141 F.3d 953 (9th Cir. 1998); see also Stewart v. INS, 181 F.3d 587 (1999); Matter of Shaar, 21 I&N Dec. 541 (BIA 1996). Note, however, that the facts in Matter of Shaar may be distinguished. Of particular significance is the fact that the respondents filed the motion to reopen only three days prior to the expiration of the voluntary departure period. The BIA found that it was not unusual that the immigration judge was unable to adjudicate the motion in such a short time frame. If a motion to reopen is filed much earlier, this may be a distinguishing factor, particularly in light of EOIR’s stated intent to adjudicate motions to reopen within 60 days. See Memo, OCIJ, Case Completion Goals (April 26, 2002) (Posted on AILA InfoNet at Doc. No. 03070847 (July 8, 2001)).

Moreover, in Matter of Shaar, the respondents moved to reopen in order to apply for suspension of deportation; they had accrued the requisite seven years of physical presence during the departure period. The BIA found that the accrual of seven years was "not unusual or out of the ordinary and is not a compelling event which could not have been anticipated." Matter of Shaar, 21 I&N Dec. at 544. There may be other situations where the late filing of a motion to reopen was the result of a more compelling event – such as a change in the circumstances of qualifying family member that would help establish hardship in a cancellation of removal case. In this situation, it may be possible to show "exceptional circumstances."

4. What is the Effect of Filing a Motion to Reopen Removal Proceedings?
The BIA has held that filing a motion to reopen proceedings does not stop the voluntary departure period from running. Matter of Shaar, 21 I&N Dec. 541 (BIA 1996). Moreover, the BIA concluded that filing a motion to reopen does not constitute an exceptional circumstance. Id. The Ninth Circuit upheld the BIA’s decision in Shaar v. INS, 141 F.3d 953 (9th Cir. 1998). See Stewart v. INS, 181 F.3d 587, 596 (following Shaar v. INS); see also Rojas-Reynoso v. INS, 235 F.3d 26, 30 n.3 (1st Cir. 2000) (approving of Shaar v. INS in dictum).

Therefore, unless the motion is granted prior to the voluntary departure date, those who do not depart risk being subject to the penalties. Individuals who were granted voluntary departure and subsequently become eligible for relief should file a motion to reopen as soon as possible. Be sure to inform the immigration court or the BIA of the impending departure date and request that the case be expedited.

5. Are There Arguments Supporting Reconsideration of the Matter of Shaar Principle?
The BIA, as well as the federal courts, should reconsider whether the filing of a motion to reopen should stop the voluntary departure period from running. Matter of Shaar was decided under pre-IIRIRA law, and since that time, the immigration laws have changed to such an extent that some of the BIA’s reasoning is no longer applicable. See Zazueta-Carillo v. Ashcroft, 322 F.3d 1166 (9th Cir. 2003). In Zazueta-Carillo, the Ninth Circuit reconsidered its prior decision Contreras-Aragon v. INS, 852 F.2d 1088 (9th Cir. 1998), which held that the voluntary departure period did not begin to run until after the court issued its mandate. The court concluded "IIRIRA so recast the statutory landscape that the rationale for Contreras-Aragon has been eliminated." Zazueta-Carillo, 322 F.3d at 1170. To some extent, the same can be said about the BIA’s rationale in Matter of Shaar.

In determining that the filing of a motion to reopen should not toll the voluntary departure period, the BIA in Matter of Shaar was concerned about the filing of last minute motions as a means to delay departure or deportation. The decision said, "‘Motions for reopening of immigration proceedings are disfavored for the same reasons as are petitions for rehearing, and motions for a new trial on the basis of new evidence. This is especially true in a deportation proceeding where, as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.’" Matter of Shaar, 21 I&N Dec. at 547 quoting INS v. Doherty, 502 U.S. 314, 322 (1992).

The BIA’s concern about delay is less relevant now. On April 26, 2002, the Office of the Chief Immigration Judge implemented Case Completion Goals for immigration court adjudications. Under these Goals, in FY 2003, 90% of the motions to reopen or reconsider will be completed within 60 days. Given this timeframe, there is little benefit to be gained if the purpose of filing the motion were to delay departure.

Furthermore, in Matter of Shaar, the BIA concluded that the respondents had an option available to them so that they could remain in the United States while the immigration judge was adjudicating their motion to reopen: they could have asked the district director for an extension of the voluntary departure period. Under the former 8 C.F.R. § 244.2, the district director had discretion to grant multiple extensions. Although the current regulations allow the government to grant extensions, "the total period of time, including any extension, [cannot] exceed 120 days or 60 days as set forth in section 240B of the Act." 8 C.F.R. § 240.26(f). Thus, in contrast to the situation in Matter of Shaar, today, most people will not have the option of seeking an extension of the voluntary departure period.

6. Are There Exceptions to the Consequences of Failing to Depart in Post-IIRIRA Cases?
IIRIRA removed the "exceptional circumstances" language from the statute. Nonetheless, the statute says that the penalties apply when a person "is permitted to depart voluntarily . . . and fails voluntarily to depart the United States within the time specified." INA § 240B(d) (emphasis added). "Voluntarily" is defined as "proceeding from the will or one’s own choice or consent," "unconstrained by interference," or "done by design or intention."10 Therefore, a person whose failure to depart was not voluntary, but was the result of something beyond this person’s control – something akin to an exceptional circumstance – should argue that the civil penalties do not apply.11 An example may be where a person does not depart because of a serious illness; in that situation, arguably, the failure to depart was not voluntary.

7. Was There a Due Process Violation in Removal Proceedings?
There may be situations where a person in removal or deportation proceedings is denied due process and subsequently is granted voluntary departure. The due process violation may take one of several forms, including, but not limited to, denial of counsel, incompetent translation, denial of right to present evidence, denial of right to present testimony, failure of the government to follow its own regulations, or lack of notice. Where a person is denied due process, courts should restore that person to the position he or she was in prior to the due process violation. That means that even where a person did not depart after a grant of voluntary departure, that person should not be subject to the consequences, but should be treated as though he or she were never granted voluntary departure in the first place.

For example, consider the following situation: A person in removal proceedings is denied the right to counsel and his right to present evidence at the initial removal hearing. As a result, his application for cancellation of removal is denied. The immigration judge grants voluntary departure. The person appeals to the BIA, but this appeal is dismissed. Subsequently, the person fails to depart within the prescribed time period. If this case is appealed to the federal courts, the government may argue that any errors are not prejudicial because the petitioner failed to depart and therefore, he now is statutorily ineligible for cancellation of removal.

The government’s argument, however, ignores the fact that the grant of voluntary departure and subsequent failure to depart took place only after the due process violation – denial of counsel and right to present evidence – occurred. As the Seventh Circuit explained, "the only way to cure the . . . defect in the original hearing is to afford [petitioner] not only a new hearing, but also a hearing in which counsel may protect [petitioner’s] rights to the same extent that the attorney would have in the first hearing." Batanic v. INS, 12 F.3d 662, 667 (7th Cir. 1993) cited in Castillo-Perez v. INS, 212 F.3d 518, 528 (9th Cir. 2000). Thus, individuals should argue that they should be restored to their position prior to the due process violation – that is, prior to the voluntary departure grant.

In Batanic, petitioner’s right to counsel had been infringed at his first deportation hearing, and as a result, he was denied his opportunity to apply for asylum. 12 F.3d at 664. On appeal, the BIA remanded the case to the immigration court. Id. In the meantime, a statutory change in the eligibility requirements for asylum went into effect; under the new law, petitioner no longer was eligible for asylum. Id. The government maintained that the new law should apply to petitioner. Id. The Seventh Circuit, however, rejected the government’s argument. The Court said, "when [petitioner] was deprived of his right to counsel, he was also deprived of his right to apply for asylum; the two were inextricably tied." Batanic, 12 F.3d at 667. Therefore, the court concluded that due process required that petitioner should be allowed to apply for asylum under the law in effect at the time of his original hearing. See Id.

The Ninth Circuit reached a similar conclusion in Castillo-Perez. In that case, petitioner’s attorney failed to file his application for suspension of deportation. Castillo-Perez, 212 F.3d at 523. The court of appeals concluded that this constituted ineffective assistance of counsel and violated the petitioner’s due process rights. See id. at 526-27. The government argued that the petitioner was no longer eligible for suspension of deportation because of a change in the law that occurred subsequent to counsel’s ineffectiveness. See id. at 522-23. The court disagreed, finding, "because we conclude that, in light of the violation of [petitioner’s] constitutional rights that occurred at his hearing, due process requires that he be afforded the benefit of the law that was applicable at the time of that hearing. . . ." Id. at 523.

Although these two cases involved changes in the law, individuals may argue that the reasoning from these cases applies in voluntary departure situations. In of these cases, the courts were concerned that individuals not be penalized because of events that occurred subsequent to the violation of their rights. The appropriate cure to a due process violation is to restore individuals to the position they were in prior to the procedural defect. In the context of failing to depart after a grant of voluntary departure, that means that a person should be treated as though he or she had not been granted voluntary departure in the first place.

8. What Happens When A Person Remains in the United States for Five or Ten Years After Failing to Depart?
There likely are many people residing in the United States who were granted voluntary departure under former INA § 244(e) over five years ago, and who failed to depart. Under former INA § 242B(e)(2)(A), the five year penalty period began to run "after the scheduled date of departure or the date of unlawful reentry." Thus, many of these people are no longer statutorily barred from relief by former INA § 242B(e)(2). In fact, many people now may be eligible for relief, particularly adjustment of status under INA § 245(i).

Likewise, individuals granted voluntary departure under the current statue and who remain in the United States for ten years following the expiration of the departure period should not be barred from relief by INA § 240B(d). This provision says that a person who fails to depart is ineligible for relief "for a period of ten years." The only other date referenced in INA § 240B(d) is "the time period specified" for voluntary departure, thus indicating that the period of ten years begins to run on the day that the voluntary departure expired.

Certainly, if Congress had intended for the time to run from the date of actual departure from the United States or for the time to stop running if certain events took place, it could have specified this. For example, the "stop time rule" specifies what events terminate the accrual of residence or presence in the context of the accrual of continuous residence or physical presence for cancellation of removal. See INA § 240A(d).

Regardless of whether the government granted voluntary departure under the current or former statute, many individuals still will face the problem that the only way to apply for adjustment of status or other relief now is to move to reopen deportation or removal proceedings. Typically, however, motions to reopen must be filed within 90 days of the final order of removal or deportation unless the government agrees to join in the motion. INA § 240(b)(6)(C)(i); 8 C.F.R. §§ 1.003.2(c)(2), 1003.23(b). INS set forth guidelines for when it will join in a motion to reopen proceedings in order to apply for adjustment of status. See Memo, Cooper, G.C. HQCOU 90/16.22.1, Motions to Reopen for Adjustment of Status (May 17, 2001) (Posted on AILA InfoNet at Doc. No. 01070333 (July 3, 2001)). Another option is to request that the BIA or the immigration court exercise its sua sponte authority to reopen the case. See 8 C.F.R. §§ 1003.2(a) and 1003.23(b)(1). It is more likely that the Immigration Judge or the BIA will reopen cases where the person has adequately explained the failure to depart or there are particularly compelling circumstances.

1. Copyright (c) 2003, American Immigration Law Foundation. See www.ailf.org/copyright for information on reprinting this practice advisory.
2. AILF gratefully acknowledges the contributions to this practice advisory of Paromita Shah, Detention Project Director at Capital Area Immigrants’ Rights Coalition.
3. Former section 244(e) applies to any person who was placed in deportation proceedings, that is proceedings initiated prior to April 1, 1997, or who was granted voluntary departure by INS before this date. See § 309 of IIRIRA.
4. Motions to reopen generally must be filed within 90 days of the final order of removal unless the government agrees to join in the motion. INA § 240(b)(6)(C)(i); 8 C.F.R. §§ 1.003.2(c)(2), 1003.23(b). INS set forth guidelines for when it will join in a motion to reopen removal proceedings in order to apply for adjustment of status. See Memo, Cooper, G.C. HQCOU 90/16.22.1, Motions to Reopen for Adjustment of Status (May 17, 2001) (Posted on AILA InfoNet at Doc. No. 01070333 (July 3, 2001)).
5. Despite the statutory bars to judicial review over certain voluntary departure decisions, the federal courts retain jurisdiction over legal questions regarding whether a person is ineligible for relief because he or she failed to depart. The statutory bars in INA § 240B(f) and INA § 242(a)(2)(B)(i) relate to the review of the decision to grant voluntary departure and should be construed narrowly. See Zazueta-Carillo v. Ashcroft, 322 F.3d 1166, 1169-70 (9th Cir. 2003). Most likely, these issues will be brought before the courts on petitions for review of motions to reopen removal or deportation proceedings.
6. Generally, EOIR will prepare a transcript of the immigration court proceedings only when the merits of the case are appealed to the BIA.
7. The pre-IIRIRA voluntary departure statute applies to any person who was placed in deportation proceedings, that is proceedings initiated prior to April 1, 1997, or who was granted voluntary departure by INS before this date.
8. In Matter of Lozada, the BIA set forth the procedural requirements for making an ineffective ineffective assistance of counsel claim. This case is discussed in detail in AILF’s Practice Advisory, "Protecting Your Client When Prior Counsel Was Ineffective" (http://www.ailf.org/lac/lac_pa_050202c.pdf) (April 2002).
9. See questions 4 and 5 below for more discussion of Matter of Shaar.
10. See Merriam-Webster’s Collegiate Dictionary, 10th Ed. (2001).
11. See question 3 above.