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AILF
Practice Advisory, Failure to Depart After a Grant of Voluntary Departure:
The Consequences and Arguments to Avoid Them
July 16, 2003
American Immigration Law Foundation
___________________
Practice Advisory1
July 2003
Failure to Depart After a Grant of Voluntary Departure: The
Consequences and Arguments to Avoid Them
By Beth Werlin2
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.4
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.5
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.6
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.”7 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)8. 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).9 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.
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