NEW VOLUNTARY DEPARTURE REGULATION
Summary:
On December 18, 2008, the Department published the final rule amending
the voluntary departure regulations. See 73 Fed. Reg. 76,927.
This rule will became effective January 20, 2009, and applies to any decision
granting voluntary departure on or after the effective date. A
Notice has been drafted
that you may print and hand out to the parties. The Notice contains the
necessary advisals in a .pdf format that you may complete, deliver
to the respondent and the DHS, and include in the record. (Voluntary Departure Advisals.pdf)
Under
the rule, a grant of voluntary departure is automatically terminated
upon the filing of a post-decision motion to reopen or reconsider with
the immigration court or the Board during the voluntary departure
period, or upon the filing of a petition for review in a federal court
of appeals. 8 C.F.R. §§ 1240.26(b)(3)(iii), (c)(3)(iii), (e)(1)
and (i).
Note With the filing of a
post-decision motion to reopen or reconsider or a petition for review,
the alien no longer has the benefit of voluntary departure, but the
alien is also not subject to the penalties for failure to depart
voluntarily under INA § 240B(d). 8 C.F.R.
§§ 1240.26(b)(3)(iii), (e)(1) and (i).
There
are new advisals immigration judges must give aliens for both
pre-conclusion and post-conclusion voluntary departure. 8 C.F.R. §§
1240.11(b), 1240.26(b)(3)(iii), (c)(3)(iii), (j). These advisals are outlined
below. There are also new advisals the Board must give aliens
when reinstating voluntary departure. 8 C.F.R. §§ 1240.26(e)(1),
(i).
If
an alien does not post the voluntary departure bond within the time
required, the alien is still obligated to depart within the period
allowed and is not exempted from the consequences for failure to
depart. This regulation overrules the Boards decision in Matter of
Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006). The failure to post
bond may be considered as a negative discretionary factor with respect
to any discretionary form of relief. 8 C.F.R.
§ 1240.26(c)(4).
If
an alien waived appeal of the immigration judges decision, the
failure to timely post the voluntary departure bond means that the
alternative order of removal takes effect immediately, except that an
alien granted voluntary departure under 8 C.F.R. § 1240.26(c)
will not be deemed to have departed under an order of removal if the
alien:
► departs
the United States no more than 25 days after the failure to post
bond;
► provides to DHS such evidence of departure as the ICE Field Office Director may
require; and
► provides evidence DHS
deems sufficient that the alien remains outside of the United
States. 8 C.F.R. § 1240.26(c)(4).
New Advisals Pre-Conclusion
Voluntary Departure
For
pre-conclusion voluntary departure, the immigration judge must advise the alien that if he or
she files a
post-decision motion to reopen or reconsider during the voluntary
departure period given by the immigration judge:
1. the
grant of voluntary departure is terminated automatically;
2. the
alternate order of removal takes effect immediately; and
3. the
penalties for failure to depart voluntarily under INA § 240B(d)
shall not apply. 8 C.F.R. § 1240.26(b)(3)(iii).
New Advisals Post-Conclusion
Voluntary Departure
Before
granting post-conclusion voluntary departure, the immigration judge
must advise the alien:
1.
of any conditions the immigration judge may set
in granting voluntary departure beyond those specifically enumerated
in the regulation. 8 C.F.R. § 1240.26(c)(3).
2.
of the
specific bond amount that will be set and the duty to post bond with
the ICE Field Office Director within 5 business days
of the immigration judges order granting voluntary departure.
8 C.F.R. § 1240.26(c)(3)(i).
Note Upon setting the conditions
and the amount of the bond, the alien must be provided the
opportunity to accept the grant of voluntary departure or decline
voluntary departure if he or she is unwilling to accept the amount of
the bond or other conditions. 8 C.F.R. § 1240.26(c)(3).
Upon
granting post-conclusion voluntary departure, the immigration judge
must advise the
alien:
1.
of the requirement to provide to the Board, within 30 days of
filing an appeal, sufficient proof of having posted the voluntary
departure bond. 8 C.F.R. § 1240.26(c)(3)(ii).
2.
that the Board will not reinstate the voluntary departure
period in its final order if the alien does not submit timely proof to
the Board that the voluntary departure bond has been posted. 8 C.F.R.
§ 1240.26(c)(3)(ii).
3.
that if the
alien files a post-decision motion
to reopen or reconsider during the voluntary departure
period:
► the grant of voluntary
departure is terminated automatically, and
► the
alternate order of removal takes effect immediately. 8 C.F.R.
§ 1240.26(c)(3)(iii).
Note - Unlike pre-conclusion voluntary
departure, the regulations do not specifically require the immigration
judge to advise the alien that upon the filing of a motion to reopen
or reconsider, the penalties for failure to depart voluntarily under
INA § 240B(d) shall not apply. But see 8
C.F.R.§ 1240.11(b) (The immigration judge shall advise the alien
of the consequences of filing a post-decision motion to reopen or
reconsider prior to the expiration of the time specified by the
immigration judge for the alien to depart voluntarily.).
New Advisal - Civil Monetary
Penalty
Immigration
judges must
advise the alien of the amount of the civil
penalty at the time of granting voluntary departure. 8 C.F.R.
§ 1240.26(j).
Note There is a rebuttable
presumption of a civil monetary penalty of $3,000 if the alien fails
to depart within the voluntary departure period, but the
immigration judge may set a higher or lower amount as permitted by INA
§ 240B(d)(1)(A). 8 C.F.R. § 1240.26(j).
CONCLUSION
A
complete copy of the final rule and supplementary information is attached for your review. Please note that the
supplementary information is detailed and may answer questions that
may arise in implementing this regulation.
