Pre-conclusion Voluntary Departure


I. VD PRIOR TO OR AT MASTER CALENDAR WHEN GOVERNMENT APPEALS


Respondent has requested the privilege of voluntarily departing the United States without expense to the government in lieu of removal under section 240B(a) of the Act. To qualify for voluntary departure, Respondent must show that s/he concedes removability and waives appeal of all issues; s/he has not been convicted of an aggravated felony; s/he is not deportable for security reasons; s/he is not an arriving alien for whom removal proceedings under INA § 240 are (or will be) initiated; and s/he has not been granted voluntary departure since April 1, 1997. In addition, Respondent must show that s/he is willing and has the means to depart immediately, and that s/he deserves the relief as a matter of discretion. Discretionary consideration of an application for voluntary departure involves a weighing of factors, including the alien’s prior immigration history, the length of his residence in the United States, and the extent of his family, business, and societal ties in the United States. Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972).


Respondent testified that:

            N other relief is requested;

            S/he concedes removability;

            S/he waives appeal of all issues;

            S/he has not been convicted of an aggravated felony;

            S/he is not deportable for security and related grounds;

            S/he is not an arriving alien for whom removal proceedings under INA § 240 are (or

will be) initiated;

            S/he has not been granted VD since April 1, 1997.


Conclusion:

 

I find that Respondent has/has not met the statutory requirements for voluntary departure, and that relief will/will not be granted in the exercise of discretion for a period of __________ days (not to exceed 120 days).


Order:


Upon the basis of Respondent’s admissions, I have determined that Respondent is subject to removal on the charge(s) in the Notice to Appear. Respondent has made application solely for voluntary departure in lieu of removal and has waived appeal of all issues.


It is HEREBY ORDERED that Respondent be GRANTED pre-conclusion voluntary departure under section 240B(a) of the Act, in lieu of removal, without expense to the Government, on or before __________________, or any extensions as may be granted by the Field Office Director, Department of Homeland Security, and under any other conditions the Field Office Director may direct.


It is FURTHER ORDERED:


            [ ] that Respondent post a voluntary departure bond in the amount of @@@ with the Department of Homeland Security on or before __________________;

            [ ] that Respondent provide to the Department of Homeland Security his or her passport or other travel documentation sufficient to assure lawful entry into the country to which the alien is departing within 60 days of this order, or within any time extensions that may be granted by the Department of Homeland Security; and/or

            [ ] Other __________________.


It is FURTHER ORDERED that if any of the above ordered conditions are not met as required or if Respondent fails to depart as required, the above grant of pre-conclusion voluntary departure shall be withdrawn without further notice or proceedings and the following order, entered pursuant to 8 C.F.R. § 1240.26(d), shall become immediately effective: Respondent shall be removed to __________________ on the charge(s) in the Notice to Appear, and in the alternative to __________________.


Respondent is HEREBY ADVISED that if he or she fails to voluntarily depart the United States within the time specified, or within any extensions that may be granted by the Department of Homeland Security, Respondent will be subject to the following penalties:


            1. Respondent will be subject to a civil monetary penalty of not less than $1,000 and not more than $5,000. INA § 240B(d). The Court has set the presumptive civil monetary penalty amount of $3,000 (or @@@ instead of the presumptive amount). 8 C.F.R. § 1240.26(j).

            2. Respondent will be ineligible, for a period of 10 years, to receive cancellation of removal, adjustment of status, registry, voluntary departure, or a change in nonimmigrant status. INA § 240B(d).


Respondent is FURTHER ADVISED that if he or she files a motion to reopen or reconsider during the voluntary departure period, the period allowed for voluntary departure will not be stayed, tolled, or extended, the grant of voluntary departure will be terminated automatically, the alternate order of removal will take effect immediately, and the above penalties for failure to depart voluntarily under section 240B(d) of the Act, 8 U.S.C. § 1229c(d), will not apply. 8 C.F.R. §§ 1240.26(b)(3)(iii), (e)(1).

 

NOTE: Written Decision


If both sides agree to pre-hearing voluntary departure, the judge does not need to issue an oral decision. Under these circumstances the judge may issue a written decision on computerized form VB. 8 CFR §1240.12(b).

 

NOTE: Benchbook Alert


On December 18, 2008, the Department published the final rule amending the voluntary departure regulations. See 73 Fed. Reg. 76,927. This rule 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)

 

For more information, see the following alert: Alert - New Voluntary Departure Regulation.

 

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