Pre-conclusion Voluntary Departure

Respondent is seeking voluntary departure before the conclusion of the removal proceedings. The alien bears the burden to establish both that s/he is eligible for this relief and that s/he merits a favorable exercise of discretion. See Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972); see also Matter of Arguelles, 22 I.& N. Dec 811 (BIA 1999). To establish eligibility for this relief an alien must request voluntary departure at the master calendar, may not request any additional relief, must concede removability, waive appeal on all issues and not have been convicted of an aggravated felony or be deportable on national security grounds. INA §240(B)(a)(1); 8 CFR §1240.26(b)(1). An arriving alien or an alien who was previously granted voluntary departure after having been found inadmissible for entering the United States without inspection is ineligible for voluntary departure. INA §§240B(a)(4) and (c).

The judge may impose such conditions as he or she deems necessary to ensure the alien’s timely departure from the United States including the posting of a voluntary departure bond and proof that the alien has a travel document. 8 CFR §1240.26(b)(3). The judge may grant pre-conclusion voluntary departure for up to 120 days. INA §240(B)(a)(2)(A) ; 8 CFR §1240.26(b)(3)(ii).

In the case of an arriving alien, an immigration judge does not have jurisdiction over an adjustment of status application, except when: the alien previously applied for adjustment of status with CIS while in the United States; departed from and returned to the U.S. pursuant to an advance parole; the adjustment application was denied by CIS; and the alien has been placed in removal proceedings. 8 CFR §1245.2(a)(1)(ii). But see Cuban Adjustment Act template

 

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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