Rachel Browning’s Legal Blog

The Department of Justice is publishing its final rule to amend the immigration regulations regarding “voluntary departure.”  This rule adopts a previously proposed rule under which a grant of voluntary departure is automatically withdrawn when a motion to reopen or reconsider is filed with the immigration judge or the Board of Immigration Appeals (BIA), or a petition for review is filed in federal court.

Background

The Immigration and Nationality Act (INA) allows certain aliens in removal proceedings the option of accepting “voluntary departure” as an alternative to formal deportation and entry of a formal removal order.  This provision of the INA offers aliens the benefit of being exempt from the ordinary bars to relief in return for their quick departure from the U.S. at no cost to the government.  When choosing to seek voluntary departure, the alien agrees to take the benefits and burdens of the INA together.  In order to obtain voluntary departure at the conclusion of removal proceedings, an alien must establish to the immigration judge by “clear and convincing evidence” that he or she is both willing and able to depart voluntarily.  

The INA specifies that an individual who has been granted voluntary departure has a period of no more than 60 days after the issuance of the order in which to depart the U.S.  Certain penalties apply to aliens who fail to depart within the statutory period allowed.  In addition, the INA provides that an individual has up to 90 days to file a motion to reopen or 30 days to file a motion to reconsider after the entry of a final order issued in removal proceedings.  In the past, the regulations have dictated that an alien’s departure from the U.S. – including voluntary departure – effectively withdraws a motion to reopen or reconsider.  On the other hand, aliens who had accepted voluntary departure and filed a motion to reopen or reconsider ran the risk of overstaying their departure period and facing penalties, if they remained in the U.S. for the pendency and disposition of their motion. 

The nature of this conflict led to a split among circuit courts regarding the relationship between voluntary departure and motions to reopen or reconsider.  While four courts of appeals held that the alien’s filing of a motion to reopen within the time allowed for voluntary departure automatically “tolled” the voluntary departure period (allowing the alien to remain in the U.S. until after the motion had been adjudicated; three other courts of appeals held that the filing of a motion to reopen did not toll the period allowed for voluntary departure. 

The New Rule

The new rule addresses this split among the courts by amending the voluntary departure regulations to state that an alien’s grant of voluntary departure automatically terminates upon the filing of a motion to reopen or reconsider.  The rule stems from the idea that voluntary departure is an agreed upon exchange of benefits between the alien and the Government.  Accordingly, when an alien decides to challenge a final order of removal through a motion to reopen or petition for review, he or she forfeits the benefits derived by being allowed to leave the country voluntarily without retaining the usual penalties associated with a final order of deportation.  The final rule does not adopt the “automatic tolling” approach some circuit courts had taken, explaining that such a provision would be inconsistent with the statutory concept of voluntary departure.  The new rule also allows immigration judges to set a specific dollar amount (not to exceed $3000) as a civil monetary penalty, should the alien fail to depart during the specified time period.

The rule offers some clarity in an area of immigration law in which there has obviously been confusion and inconsistency. Individuals in detention and/or facing removal from this country should consult with an experienced immigration attorney about the details of their situation, to find out the most beneficial form of relief available to them.  Contact the Immigration Attorneys of Smith & Garg in Houston, Westchase, Spring or The Woodlands, Texas for more information.