[Federal Register: November 30, 2007 (Volume 72, Number 230)]
[Proposed Rules]
[Page 67674-67687]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30no07-18]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 67674]]
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1240 and 1241
[EOIR Docket No. 163P; AG Order No. 2919-2007]
RIN 1125-AA60
Voluntary Departure: Effect of a Motion To Reopen or Reconsider
or a Petition for Review
AGENCY: Executive Office for Immigration Review, Justice.
ACTION: Proposed rule with request for comments.
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SUMMARY: The immigration laws provide that an alien may request and
receive a grant of voluntary departure in certain cases; such a grant
allows an alien to depart voluntarily during a specified period of time
after the order is issued, in lieu of being removed under an order of
removal. Voluntary departure is an agreed upon exchange of benefits
between the alien and the government that provides tangible benefits
for aliens who do depart during the time allowed. There are severe
statutory penalties, however, for aliens who voluntarily fail to depart
during the time allowed for voluntary departure. This proposed rule
would amend the Department of Justice (Department) regulations
regarding voluntary departure to allow an alien to elect to file a
motion to reopen or reconsider, but also to provide that the alien's
filing of a motion to reopen or reconsider prior to the expiration of
the voluntary departure period will have the effect of automatically
terminating the grant of voluntary departure. Similarly, the rule also
provides that the alien's filing of a petition for judicial review
shall automatically terminate the grant of voluntary departure. In
other words, the rule would afford the alien the option either to abide
by the terms of the grant of voluntary departure, in lieu of an order
of removal, or to forgo the benefits of voluntary departure and instead
challenge the final order on the merits in a motion to reopen or
reconsider or a petition for review. If the alien elects to seek
further review and forgo voluntary departure, the alien will be subject
to the alternate order of removal that was issued in conjunction with
the grant of voluntary departure, similar to other aliens who were
found to be removable. But this approach also means he or she will not
be subject to the penalties for failure to depart voluntarily.
The rule also amends the bond provisions for voluntary departure to
make clear that an alien's failure to post a voluntary departure bond
as required will not have the effect of exempting the alien from the
penalties for failure to depart under the grant of voluntary departure.
Aliens who are required to post a voluntary departure bond remain
liable for the amount of the voluntary departure bond if they do not
depart as they had agreed. However, the rule clarifies the
circumstances in which aliens will be able to get a refund of the bond
amount upon proof that they are physically outside of the United
States. In addition, the rule provides that, at the time the
immigration judge issues a grant of voluntary departure, the
immigration judge will also set a specific dollar amount of not less
than $3,000 as a civil money penalty if the alien voluntarily fails to
depart within the time allowed.
DATES: Written comments must be submitted on or before January 29,
2008.
ADDRESSES: You may submit comments, identified by EOIR Docket No. 163P,
by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Kevin Chapman, Acting General Counsel, Executive
Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls
Church, Virginia 22041. To ensure proper handling, please reference
EOIR Docket No. 163P on your correspondence. This mailing address may
also be used for paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: Kevin Chapman, Acting General
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike,
Suite 2600, Falls Church, Virginia 22041; telephone (703) 305-0470 (not
a toll-free call).
FOR FURTHER INFORMATION CONTACT: Kevin Chapman, Acting General Counsel,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2600, Falls Church, Virginia 22041; telephone (703) 305-0470 (not a
toll-free call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
rule. Comments that will provide the most assistance to the Department
of Justice will reference a specific portion of the rule, explain the
reason for any recommended change, and include data, information, or
authority that support such recommended change.
Instructions: All submissions received must include the agency name
and EOIR Docket No. 163P. All comments received will be posted without
change to http://www.regulations.gov/, including any personal
information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Submitted comments
may also be inspected at the Executive Office for Immigration Review,
5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041. To make
an appointment, please contact EOIR at (703) 305-0470 (not a toll free
call).
II. Background
The Immigration and Nationality Act (INA or Act) provides that, as
an alternative to formal removal proceedings and entry of a formal
removal order, ``[t]he Attorney General may permit an alien voluntarily
to depart the United States at the alien's own expense.'' INA
240B(a)(1), (b)(1) (8 U.S.C. 1229c(a)(1), (b)(1)).
Pursuant to the Homeland Security Act of 2002, Pub. L. 107-296, the
functions previously exercised by the former Immigration and
Naturalization Service were transferred to the Department of Homeland
Security (DHS), while the immigration judges and the Board of
Immigration Appeals (Board) were retained in the Department of Justice
under the authority of the Attorney General. See 6 U.S.C. 521; 8 U.S.C.
1103(g). Accordingly, DHS now has the authority to grant voluntary
departure under section 240B(a) of the Act in lieu of placing the alien
in
[[Page 67675]]
removal proceedings, while the Attorney General has authority over
grants of voluntary departure issued by an immigration judge or the
Board, after removal proceedings have begun. This rule deals only with
orders granting voluntary departure issued by immigration judges or the
Board, and does not affect DHS's issuance of orders granting voluntary
departure for aliens prior to the initiation of removal proceedings.
See 8 CFR 240.25.
Prior to 1996, the authority for voluntary departure was found in
former section 244(e) of the Act, which contained no time limitations
on the period for which voluntary departure could be valid. However, in
1996 Congress enacted the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), Public Law 104-208, Div. C, which
significantly amended the Act, including provisions relating to
voluntary departure. Reforms to voluntary departure included enacting
restrictions limiting the time for which voluntary departure may be
authorized, and enacting provisions to increase compliance by aliens
who request grants of voluntary departure. The statutory changes made
by IIRIRA to voluntary departure remain in effect.
Currently, prior to completion of removal proceedings an
immigration judge may permit an alien to depart the United States
voluntarily, if certain conditions are met, within a total period not
to exceed 120 days. INA 240B(a)(2)(A) (8 U.S.C. 1229c(a)(2)(A)); 8 CFR
1240.26(b). Among these conditions is an agreement by the alien not to
file an appeal. 8 CFR 1240.26(b)(1)(D).
At the conclusion of removal proceedings, additional conditions are
applicable, but the alien is not required to waive the filing of an
appeal to the Board. The immigration judge may permit an alien to
depart the United States voluntarily only within a total period of no
more than 60 days. INA 240B(b)(2) (8 U.S.C. 1229c(b)(2)); 8 CFR
1240.26(c). Where the period of voluntary departure granted by the
immigration judge or the Board is less than the statutory maximum, DHS
also has authority to grant an extension of voluntary departure up to
the statutory maximum of 120 or 60 days.
Because the Act provides that the Attorney General ``may'' permit
an alien to depart voluntarily, the determination whether to allow an
alien in removal proceedings to depart voluntarily is within the
discretion of the Attorney General and of the immigration judges and
the Board, who act on his behalf. The Act further provides that ``[t]he
Attorney General may by regulation limit eligibility for voluntary
departure under this section for any class or classes of aliens. No
court may review any regulation issued under this subsection.'' INA
240B(e) (8 U.S.C. 1229c(e)).
III. The Nature of Voluntary Departure
Voluntary departure ``is a privilege granted to an alien in lieu of
deportation.'' Iouri v. Aschroft, 487 F.3d 76, 85 (2d Cir. 2007), pet.
for cert. filed, No. 07-259 (Aug. 22, 2007) (citing Ballenilla-Gonzalez
v. INS, 546 F.2d 515, 521 (2d Cir. 1976)). It is ``an agreed upon
exchange of benefits between the alien and the Government.'' Banda-
Ortiz v. Gonzales, 445 F.3d 387, 389 (5th Cir. 2006), cert. denied, 127
S. Ct. 1874 (2007). This quid pro quo offers an alien ``a specific
benefit--exemption from the ordinary bars to relief--in return for a
quick departure at no cost to the government.'' Id. at 390 (quoting
Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir. 2004)). When choosing
to seek voluntary departure, the alien agrees to take all the benefits
and burdens of the statute together. Ngarurih, 371 F.3d at 194. 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. See, e.g., 8 U.S.C. 1229c(b)(1)(D); 8 CFR
1240.26(c)(1)(iv). Often, this involves the alien testifying under oath
that he or she intends to depart the United States within the specific
time period allotted, that he or she has the financial means to depart
the United States, and that he or she has the necessary documentation--
such as a valid passport--to do so. See 8 CFR 1240.26(c)(3).
``If an alien chooses to seek [voluntary departure]--and that
choice is entirely up to the alien--it can produce a win-win
situation.'' Naeem v. Gonzales, 469 F.3d 33, 36 (1st Cir. 2006) (citing
Bocova v. Gonzales, 412 F.3d 257, 265 (1st Cir. 2005)). ``For aliens,
voluntary departure is desirable because it allows them to choose their
own destination points, to put their affairs in order without fear of
being taken into custody at any time, to avoid stigma and various
penalties associated with forced removal--and it facilitates the
possibility of return to the United States.'' Iouri, 487 F.3d at 82-83
(citing Lopez-Chavez v. Ashcroft, 383 F.3d 650, 651 (7th Cir. 2004)).
``For the government, it expedites departures and reduces the costs
that are typically associated with deporting individuals from the
United States.'' Id., at 83 (citing Thapa v. Gonzales, 460 F.3d 323,
328 (2d Cir. 2006)); accord Chedad v. Gonzales, 497 F.3d 57, 63-64 (1st
Cir. 2007), pet. for reh'g en banc filed (Oct. 15, 2007); Azarte v.
Ashcroft, 394 F.3d 1278, 1284 (9th Cir. 2005). ``Where an alien departs
within the specified time period, the alien is not regarded as having
been deported and thus obtains the benefits of departure without
deportation.'' Iouri, 487 F.3d at 85 (citing Gordon, Mailman & Yale-
Loehr, Immigration Law and Procedure 72.08[1][a] (rev. ed. 2005)). In
particular, the grant of voluntary departure enables an alien to avoid
the five- or ten-year period of inadmissibility that would result from
an order of removal. See 8 U.S.C. 1182(a)(9)(A).
However, ``[t]he benefits normally associated with voluntary
departure come with corollary responsibilities. An alien who permits
his voluntary departure period to run and fails to leave the country
before the expiration date faces severe sanctions; these may include
forfeiture of the required bond, a fine, and a ten-year interval of
ineligibility for certain forms of immigration-related relief.'' Naeem,
469 F.3d at 37. These penalties, as well as the elimination of an
``exceptional circumstances'' exception previously available to aliens
for failing to comply with a voluntary departure grant, were added to
the voluntary departure provisions by Congress in 1996 to ensure that
aliens who seek voluntary departure no longer abuse the privilege that
is a grant of voluntary departure. Compare 8 U.S.C. 1229c(d) (2000 &
supp. ) with 8 U.S.C. 1252b(e)(2)(A) (repealed effective April 1,
1997).
Exceptions to or extensions of the voluntary departure period
authorized by Congress run counter to the statutory purpose. The court
in Ngarurih recognized this, noting ``an alien could request voluntary
departure, overstay the specified period and deprive the government of
a quick departure, wait out the appellate review process, and then
demand the full benefits of voluntary departure.'' Ngarurih, 371 F.3d
at 195. Delay in proceedings generally works in the alien's favor. See,
e.g., INS v. Doherty, 502 U.S. 314, 323 (1992) (noting that ``every
delay'' in deportation proceedings ``works to the advantage of the
deportable alien who wishes merely to remain in the United States'');
Shaar v. INS, 141 F.3d 953, 956 (9th Cir. 1998) (overruled on other
grounds).
The Fourth Circuit summed up voluntary departure as follows:
[V]oluntary departure is, from beginning to end, voluntary. The
alien must request the relief; it is not offered as a matter of
course. Even if he requests the relief and obtains it, the alien may
later reject it by overstaying the
[[Page 67676]]
period specified for departure. If he rejects voluntary departure in
this manner, then he is subject to removal from the United States in
the ordinary course. The fact that his choice carries real
consequences--a monetary penalty and subjection to the ordinary bars
on subsequent relief--means that the alien has a real choice to
make, not that he is * * * ``forced'' to leave.
Ngarurih, 371 F.3d at 194 n.12 (citation omitted).
This rule applies to all orders granting voluntary departure by an
immigration judge, but the proposed changes relate primarily to orders
granting voluntary departure to an alien at the conclusion of removal
proceedings, pursuant to the provisions of section 240B(b) of the Act
and 8 CFR 1240.26(c). At that stage of the proceedings, voluntary
departure is not a relevant issue unless the immigration judge or the
Board has already found that the alien is removable under section 212
or 237 of the Act (8 U.S.C. 1182, 1227). Moreover, voluntary departure
is not a relevant issue unless the immigration judge or the Board is
denying all of the alien's other applications for relief or protection
of removal (such as asylum, withholding of removal, cancellation of
removal, adjustment of status, waivers, etc.), as the issue of
voluntary departure would be moot if the alien were granted any relief
or protection from removal. Thus, at the request of the alien, and
based on the alien's statement of his or her ability and intent to
depart the United States within the period allowed for voluntary
departure, the immigration judge's grant of voluntary departure permits
the alien to depart voluntarily, within a fixed period of time, instead
of subjecting the removable alien to an order of removal. However, a
grant of voluntary departure issued at the conclusion of proceedings
also includes an alternate order of removal, which takes effect
automatically if the alien fails voluntarily to depart during the time
allowed.
Under the current regulations, as well as under this proposed rule,
an alien who is granted voluntary departure at the conclusion of
proceedings before the immigration judge is still able to file an
appeal to the Board and present any arguments with respect to the
merits of the alien's removability and eligibility for any form of
relief or protection from removal. If neither party appeals the
immigration judge's decision, then the decision becomes final and the
period of time for voluntary departure runs from the date of the
immigration judge's grant of voluntary departure. However, in every
case where the alien does file a timely appeal to the Board, the
immigration judge's order is not final, and the time period for
voluntary departure does not begin to run until after the conclusion of
the Board's adjudication of the merits of the alien's appeal. If the
Board reverses the immigration judge's decision on the merits or
remands the case to the immigration judge for further proceedings, the
grant of voluntary departure is rendered moot by virtue of the Board's
decision. In the event of a remand, the issue of the alien's
eligibility for and desire to receive voluntary departure will again be
before the immigration judge as part of the remanded proceedings. Thus,
it is only in those cases where the Board rejects all of the alien's
arguments relating to removability and to relief or protection from
removal that the order granting voluntary departure actually takes
effect and the alien is obligated to depart from the United States
within the specified period (no more than 60 days).
IV. Voluntary Departure and the Effect of Filing Motions To Reopen or
Reconsider
Once the immigration judge or Board issues a final order in a case,
regardless of whether it grants voluntary departure, the alien has the
option under the Act and implementing regulations to file a motion to
reopen or a motion seeking to have the decision reconsidered.
A. Motions To Reopen or Reconsider
Prior to the statutory codification of the regulatory provisions on
reopening and reconsideration, the Board held in Matter of Shaar, 21
I&N Dec. 541 (BIA 1996), aff'd, 141 F.3d 953 (9th Cir.1998), that the
filing of a motion to reopen does not suspend the running of the period
for voluntary departure or excuse the alien from the requirement to
depart within that period.
In the 1996 legislation, Congress enacted section 240(c)(6) and (7)
of the Act (8 U.S.C. 1229a(c)(6) and (7)), which substantially codified
existing regulatory provisions. Paragraph (6) allows an alien in
removal proceedings to file one motion to reconsider and provides that
such a motion must be filed within 30 days of the date of entry of a
final removal order in his or her removal proceedings. Paragraph (7)
allows an alien to file one motion to reopen removal proceedings and
provides that such a motion must be filed within 90 days of the date of
entry of a final administrative order of removal.\1\ The statutory
provisions do not provide for a stay of removal upon the filing of a
motion to reopen or a motion to reconsider, except in two quite limited
circumstances (for motions to reopen seeking to rescind an in absentia
removal order and certain motions filed by battered spouses, children
and parents, as provided in subsections (b)(5)(C) and (c)(7)(C)(iv) of
section 240 of the Act).
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\1\ After the issuance of a final decision by the Board, only
motions to reopen and motions to reconsider are authorized under the
immigration laws. 8 U.S.C. 1229a(c)(6) and (7). A separate kind of
motion, a motion to remand, can be filed only during the pendency of
an appeal, but not after the issuance of a final order. 8 CFR
1003.2(c)(4) states, ``A motion to reopen a decision rendered by an
Immigration Judge or [DHS] officer that is pending when an appeal is
filed, or that is filed while an appeal is pending before the Board,
may be deemed a motion to remand for further proceedings before the
Immigration Judge or the [DHS] officer from whose decision the
appeal was taken.'' See also Matter of Coelho, 20 I&N Dec. 464 (BIA
1992) (discussing motions to remand considered by the Board during
the pendency of the appeal). After the issuance of a final order,
the Board sometimes receives motions styled as motions to ``remand''
or motions to ``reopen and remand.'' Such motions, however,
presuppose reopening in order to have the case remanded and,
accordingly, they are properly considered to be motions to reopen
and are subject to the same requirements. Id. The Board and the
immigration judges otherwise would lack authority to entertain such
motions in the first instance. Matter of C-W-L-, 24 I&N Dec. 346,
350 (BIA 2007) (``[T]he regulations provide that to request further
relief, a motion to reopen must be filed with the last body that
issued an administratively final order of removal,'' and the filing
of a motion to reopen proceedings is ``a prerequisite to our taking
up any issue arising in [the respondent's] case, given the entry of
the removal order against him.''). Accordingly, the provisions of
this rule apply to all motions to reopen or reconsider that are
filed after the issuance of a final administrative decision, however
such motions are styled.
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After publication of a proposed rule on January 3, 1997, the
Department of Justice published an interim rule implementing the
provisions of IIRIRA on March 6, 1997. See 62 FR 10312. The
supplementary information for the interim rule requested comments on
what position the final, permanent rules should take on the effect on
the voluntary departure period of an appeal from an immigration judge
to the Board, a petition for review of a Board decision in the court of
appeals, or a motion to reopen or reconsider filed with an immigration
judge or the Board:
[S]everal commenters requested clarification regarding the
effect of a motion or appeal to the Immigration Court, BIA, or a
federal court on any period of voluntary departure already granted.
Since an alien granted voluntary departure prior to completion of
proceedings must concede removeability [sic] and agree to waive
pursuit of any alternative form of relief, no such appeal or motion
would be possible in this situation. Regarding post-hearing
voluntary departure, the Department considered several options, but
has not adopted any position or modified the interim rule. The
Department has identified three possible options: no tolling of any
period of voluntary departure; tolling the voluntary departure
period for any
[[Page 67677]]
period that an appeal or motion is pending; or setting a brief,
fixed period of voluntary departure (for example, 10 days) after any
appeal or motion is resolved. The Department wishes to solicit
additional public comments on these or other possible approaches to
this issue so that it can be resolved when a final rule is
promulgated.
62 FR 10312, 10325-26 (Mar. 6, 1997).
Although no final rule directly addressing those issues has been
published, the current regulations are consistent with the Department's
longstanding view that the filing of a motion to reopen does not
suspend a period of voluntary departure. The regulations do not state
that the conclusion reached by the Board in Shaar was incorrect or was
to be superseded. To the contrary, they provide that the filing of a
motion to reopen or a motion to reconsider ``shall not stay the
execution of any decision made in the case,'' and that ``[e]xecution of
such decision shall proceed unless a stay of execution is specifically
granted by'' the Board or the immigration judge. 8 CFR 1003.2(f). In
addition, the regulations expressly permit the reinstatement of
voluntary departure in the context of reopening, but only in situations
where the reopening was granted before the expiration of the period
allowed for voluntary departure:
An immigration judge or the Board may reinstate voluntary
departure in a removal proceeding that has been reopened for a
purpose other than solely making application for voluntary
departure, if reopening was granted prior to the expiration of the
original period of voluntary departure. In no event can the total
period of time, including any extension, exceed 120 days or 60 days
as set forth in section 240B of the Act and paragraph (a) of this
section.
8 CFR 1240.26(h) (emphasis added). That rule necessarily rests on the
assumption that the mere filing of the motion to reopen does not
suspend or toll the running of the voluntary departure period. Finally,
although the Board has not published a precedent decision since its
1996 decision in Shaar addressing the interplay between the provisions
relating to voluntary departure and motions to reopen or reconsider a
final order in removal proceedings, the Board has continued to conclude
that the filing of such a motion does not suspend or toll the voluntary
departure period, as evidenced by the number of court of appeals
decisions reviewing such decisions by the Board.\2\
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\2\ The Department's practice has remained consistent with
respect to the other two subjects referenced in the 1997 request for
comments as well. With respect to appeals from an immigration judge
to the Board, the INA itself provides that an immigration judge's
order does not become final until the Board issues its decision, see
8 U.S.C. 1101(a)(47)(B), and the Department's regulations provide
that the voluntary departure period runs from that date, 8 CFR
1241.1(f). With respect to petitions for review, in contrast, the
Department's position continues to be that the filing of such a
petition does not by its own force create a stay of removal.
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As a practical matter, it is often the case that an immigration
judge or the Board cannot reasonably be expected to adjudicate a motion
to reopen or reconsider during the voluntary departure period,
particularly since the voluntary departure period under section 240B(b)
of the Act is limited to no more than 60 days. Many motions to reopen
are filed by the alien one or two days before the end of the 60-day
voluntary departure period, thereby making it impossible to resolve the
matter before the period allowed for voluntary departure expires.
Because of the relatively short period of time allowed for
voluntary departure after a final administrative order (no more than 60
days), and the time needed as a practical matter to adjudicate motions
to reopen or reconsider, aliens who file a motion to reopen or
reconsider may face a choice. Some aliens may choose to remain in the
United States beyond the voluntary departure period in order to await
the decision of the Board on the motion, thereby incurring the
statutory penalties because of their failure to depart as they had
promised to do. For example, if a decision on the motion is not issued
until after the period allowed for voluntary departure has expired,
which is frequently the case, then the 10-year bar on obtaining
adjustment of status may be deemed to apply by operation of 8 U.S.C.
1229c(d) because of the alien's failure to depart. Other aliens may
choose to depart the United States in compliance with the grant of
voluntary departure, even though they have not yet received a decision
on their motion, in order to avoid the voluntary departure penalties.
However, under the current regulations the alien's departure from the
United States has the effect of automatically withdrawing the alien's
motion. 8 CFR 1003.2(d); see also 8 CFR 1003.23(b)(1) (similar rule for
departure after filing a post-decision motion with the immigration
judge).\3\
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\3\ We note that two courts of appeals have reached contrary
conclusions with respect to section 1003.2(d). See Li v. Gonzales,
473 F.3d 979 (9th Cir. 2007) (interpreting section 1003.2(d) only to
bar the filing of a motion to reopen if the alien ``is'' in removal
proceedings at the time of his or her departure, but not to bar the
filing of a motion to reopen if the alien was already the subject of
a final order of removal at the time of departure); William v.
Gonzales, 499 F.3d 329 (4th Cir. 2007) (holding that section
1003.2(d) is inconsistent with the provisions of section 240(c)(7)
of the INA). The Board at present is following those decisions only
for cases arising in those two circuits. This proposed rule does not
address the interpretation or applicability of section 1003.2(d).
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B. Existing Circuit Split
The courts of appeals are divided on the question of how the filing
of a motion to reopen impacts a grant of voluntary departure. Four
circuits have held that the timely filing of a motion to reopen during
the voluntary departure period automatically ``tolls'' the period
allowed for voluntary departure. See Kanivets v. Gonzales, 424 F.3d
330, 331 (3d Cir. 2005); Sidikhouya v. Gonzales, 407 F.3d 950, 952 (8th
Cir. 2005); Barrios v. United States Att'y General, 399 F.3d 272 (3rd
Cir. 2005) (pre-IIRIRA); Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th
Cir. 2005); Ugokwe v. United States Att'y Gen., 453 F.3d 1325, 1331
(11th Cir. 2006). In a similar context, the Ninth Circuit has held that
the filing of a timely motion to reconsider tolls the voluntary
departure period. Barroso v. Gonzales, 429 F.3d 1195 (9th Cir. 2005).
The courts of appeals for the First, Fourth, and Fifth Circuits have
reached the contrary conclusion, as a matter of law or by deference to
the Board's authority to interpret the Act, finding that the filing of
a motion to reopen does not toll the period allowed for voluntary
departure. See Chedad, 497 F.3d at 63-64; Banda-Ortiz, 445 F.3d at 390;
Dekoladenu v. Gonzales, 459 F.3d 500, 507 (4th Cir. 2006), pet. for
cert. filed (No. 06-1285).
Under current judicial precedents in some circuits the voluntary
departure process as it is being applied bears little resemblance to
the statutory mandate that the alien who requests and is granted
voluntary departure at the conclusion of removal proceedings is
expected to depart voluntarily no more than 60 days after the
administrative order becomes final. In some circuits, as noted above,
the filing of a motion to reopen or reconsider has the effect of
automatically tolling the time period for voluntary departure, allowing
the alien to remain in the United States until the motion is
adjudicated. The result in these circuits is that some aliens who have
received a final administrative order, after appealing to the Board,
are able to remain in the United States to pursue the full panoply of
means to challenge the final decision through administrative motions to
reopen or reconsider (including in some cases the filing of a motion to
reconsider the denial of a motion to reopen). Those processes, of
course, can take many months to accomplish. Thus, contrary to the
incentives and benefits of voluntary departure that result if an alien
actually
[[Page 67678]]
departs within a short, fixed, period of time, the result in those
areas of the country is that aliens who accept a grant of voluntary
departure are nevertheless able to remain in the United States for an
often lengthy period of time and are not obligated to depart
voluntarily until after they have exhausted all opportunities for
reconsideration, remand, or reopening. At that point, the government
will already have borne much the same burdens that it would have faced
if the alien had not agreed to depart voluntarily, and much of the
benefit to the government will have been lost. Banda-Ortiz, 445 F.3d at
390. This result is also contrary to the clear congressional intent to
limit the period of time allowed under the voluntary departure
provisions, which before the 1996 amendments had allowed aliens to
remain in the United States for many months or even years under grants
of voluntary departure.
Contrary to the decisions of those courts of appeals, the
Department's interpretation of the Act and the existing regulations is
that the filing of a motion to reconsider or reopen under section
240(c)(6) or (7) of the INA (8 U.S.C. 1229a(c)(6) or (7)) does not
automatically toll the voluntary departure period, and that such
tolling is not necessary in order to give effect to both the INA's
provision for an alien to file a motion to reopen and its provision
authorizing the Attorney General to permit voluntary departure. As the
Fourth Circuit has explained, the ``voluntary departure provision''
establishing the maximum departure period of 60 or 120 days ``applies
to certain removable aliens'' who qualify for that relief, ``while the
motion to reopen provision applies to all aliens subject to removal.''
Dekoladenu, 459 F.3d at 505-06. Indeed, only 11 percent of removable
aliens were granted voluntary departure in 2005. See id. at 506 n.5.
Accordingly, ``[f]ollowing the normal rule of statutory construction,
the more specific voluntary departure provision governs in those
limited situations in which it applies.'' Id. at 506. Motions to reopen
are unaffected in other cases. Moreover, while the INA provides that an
alien may file one motion to reopen, it confers no right to substantive
relief. To the contrary, the granting of reopening is discretionary.
Similarly, the granting of voluntary departure is discretionary with
the Attorney General, and the Attorney General is expressly authorized
to limit eligibility for additional classes of aliens pursuant to
section 240B(e) of the INA (8 U.S.C. 1229c(e). Finally, although an
alien who has obtained a grant of voluntary departure and is subject to
an alternate order of removal may, after exhausting administrative
remedies with the Board, file a petition for review with the court of
appeals, it is well-established that the mere filing of such a petition
does not automatically toll or suspend the voluntary departure period,
as illustrated by the number of appellate decisions addressing whether
it is appropriate to construe a motion for a stay of removal as
necessarily encompassing a request for a stay of voluntary departure.
It therefore is fully consistent with the Act that, under applicable
procedures, an alien who files a motion to reopen and chooses to remain
in the country until the Board acts upon it thereby gives up the
benefits of voluntary departure.
That was the conclusion reached by the Board in Shaar under the
reopening regulations that were codified in the 1996 amendments made by
IIRIRA, and there is no indication in those amendments or their
legislative history that they overturned the rule of Shaar. To the
contrary, a rule of automatic tolling, with resulting delay, of
voluntary departure would be contrary to Congress's decision in the
1996 amendments to impose strict time limits on the voluntary departure
period. Indeed, ``mandat[ing] tolling of the voluntary departure period
when an alien files a motion to reopen would have the effect of
rendering the time limits for voluntary departure meaningless.''
Dekoladenu, 459 F.3d at 506; see Banda-Ortiz, 445 F.3d at 390
(``Automatic tolling would effectively extend the validity of [an
alien's] voluntary departure period well beyond the sixty days that
Congress has authorized.'').
The Supreme Court recently granted certiorari to review a decision
by the Fifth Circuit with respect to the effect of filing a motion to
reopen, in order to resolve the circuit split under existing law. Dada
v. Keisler, 128 S. Ct. 6 (Sept. 25, 2007) (No. 06-1181).
C. The Attorney General's Authority To Promulgate a Different
Regulatory Scheme in the Future
As a result of the varying judicial interpretations in the
different regional circuits, there is a substantial geographic
disparity with respect to how voluntary departure is administered,
depending solely on the location of the hearing before the immigration
judge. Experience also has shown that the current regulatory framework
can lead to significant delays in promoting and effectuating voluntary
departure after a final administrative order is entered. Though such
disparities of interpretation among the circuits occur in other
contexts as well, there are sound public policy reasons for the
Attorney General to promote a greater measure of uniformity and
expedition in the administration of the immigration laws. The goals of
promoting uniformity of interpretation and assuring prompt voluntary
departure underlie this proposed rule.
Circuit court decisions holding that the filing of motions to
reopen or reconsider tolls the running of a voluntary departure period
do not prevent the Department of Justice from rendering an
authoritative construction of the Act that does not require tolling, as
it does now in issuing these rules. ``Only a judicial precedent holding
that the statute unambiguously forecloses the agency's interpretation,
and therefore contains no gap for the agency to fill, displaces a
conflicting agency construction.'' National Cable & Telecom. Ass'n v.
Brand X Internet Servs., 545 U.S. 967, 982-83 (2005); id. at 983-84
(``A court's prior judicial construction of a statute trumps an agency
construction otherwise entitled to Chevron deference only if the prior
court decision holds that its construction follows from the unambiguous
terms of the statute and thus leaves no room for agency discretion.'').
Certainly, nothing in the Act ``unambiguously'' requires that the mere
filing of a motion to reopen or reconsider automatically tolls the
voluntary departure period within which the alien has agreed to depart.
And indeed the Board's practice under the 1996 amendments (as it was
before those amendments as stated in Shaar) has been not to deem the
voluntary departure period automatically tolled upon the filing of a
motion to reopen or reconsider.
Nor do the various judicial decisions under the current regulatory
framework preclude the Attorney General from adopting a different
regulatory scheme for the future within the broad parameters of the
statutory provisions enacted by Congress. Congress clearly provided for
the Attorney General to have broad authority to implement the voluntary
departure provisions of the Act and to limit eligibility for voluntary
departure for specified classes or categories of aliens, as provided in
section 240B(e) of the Act. The provisions of this rule are an exercise
of these statutory authorities. These new rules will be applicable to
grants of voluntary departure that will be made in the future, after
these rules are finalized, and will not affect any cases in which a
grant of voluntary departure was made prior to their adoption.
[[Page 67679]]
The voluntary departure statute does not unambiguously provide that
permission to depart voluntarily is irrevocable once granted, such that
aliens permitted to depart voluntarily by an immigration judge must
always be viewed as having been ``permitted to depart voluntarily'' for
purposes of 8 U.S.C. 1229c(d). Accordingly, the Attorney General
retains discretion and authority to provide, by regulation, that
permission to depart voluntarily is conditioned upon the alien's
agreeing to accept the finality of the Board's order after it is issued
(or the finality of the immigration judge's order if there is no
appeal), and depart within the period allowed for voluntary departure
thereafter, without seeking to challenge the final order by filing a
motion to reopen or reconsider.
That is what these proposed rules would do, by providing that
permission to depart voluntarily, following entry of a final order,
will terminate if the alien files a motion to reopen or reconsider the
final administrative order. A voluntary departure order reflects an
agreement or bargain between the government and the alien, in which the
alien represents that he or she is ready and able to depart voluntarily
within a short, defined period of time, in exchange for receiving the
favorable terms of a grant of voluntary departure. If the alien decides
not to uphold his or her end of the bargain and instead chooses to
challenge the final order rather than departing within the time
allowed, these rules provide that the grant of voluntary departure is
terminated and the alternate order of removal becomes effective.
Moreover, unlike the current regulatory scheme for grants of voluntary
departure prior to the conclusion of proceedings before an immigration
judge, in which the alien is required irrevocably to waive the right to
appeal as provided in 8 CFR 1240.26(b)(1)(i)(D), these proposed rules
are more favorable to the alien because they do not irrevocably bar the
alien from challenging the final order after it is entered by the
Board. The alien will be free to forgo voluntary departure and instead
to elect to challenge the final order through a motion to reopen or
reconsider, or a petition for review. Or, put another way, these rules
would allow the alien an opportunity to withdraw from the arrangement
into which he or she effectively entered under the statute and the
amended regulations at the time of seeking and accepting voluntary
departure, and instead to pursue further challenges after issuance of
the final order. And because the alien's act of filing an
administrative motion to reopen or reconsider or a petition for
judicial review would have the effect of terminating a period of
voluntary departure granted in accordance with these regulations, no
voluntary departure period would remain to be tolled or stayed.
This approach advances the legitimate interests of the government
in preserving the purposes of the voluntary departure authority; it
also enables aliens to avoid the consequences under section 240B(d) of
the INA of an earlier decision to accept a grant of voluntary
departure, in the event of a change of circumstances that may lead the
alien to seek to avoid those consequences, including the alien's
decision to challenge the validity of a removal order through a motion
to reconsider or judicial review.
D. Motions To Reopen or Reconsider a Final Order Filed During the
Voluntary Departure Period
This rule responds to one of the principal policy arguments offered
in support of tolling. In many cases, the alien had sought relief or
protection from removal, which was denied, and the filing of a motion
to reopen or reconsider is a means for aliens to continue to contest
the merits of the denied claims or to address eligibility for newly
discovered relief. Under this rule, aliens who file administrative
motions to reopen or reconsider prior to the expiration of the time
allowed for voluntary departure would no longer be subject to the
penalties for failure to depart, because the grant of voluntary
departure will be terminated upon the filing of the motion. However,
they will then be subject to a removal order, as is the case for other
aliens who had been found to be removable and ineligible for any form
of relief or protection from removal.
As noted by the Supreme Court, ``[m]otions 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
newly discovered evidence.'' INS v. Abudu, 485 U.S. 94, 107-08 (1988).
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.'' Doherty, 502
U.S. at 323.
However, the Department recognizes that Congress has provided that
aliens may file a motion to reopen or motion to reconsider after a
final order of removal has been entered in his or her case. Some of
these aliens may have just received an immediate relative visa
petition, for example, and wish to file a motion to reopen their case
to pursue relief through adjustment of status before any adverse
consequences for failing to timely depart attach under 240B(d) of the
Act.\4\ Other aliens may believe an error was made in their case, and
timely seek reconsideration of their decision.
---------------------------------------------------------------------------
\4\ The Department strongly encourages aliens who are in removal
proceedings when the visa petition is approved to file a motion for
remand during the pendency of the proceedings, and not wait until
after a final order of removal has been entered.
---------------------------------------------------------------------------
Under this rule, if an alien decides to contest a final
administrative order by filing a motion to reopen or reconsider after
having received a grant of voluntary departure, the grant of voluntary
departure will be automatically terminated. Such aliens will no longer
have the privilege and responsibility of departing voluntarily and will
become subject to a removal order, just like other aliens at the
conclusion of the removal proceedings who are not granted any form of
relief or protection from removal. This means, however, that they will
be able to pursue the administrative motion without the risk of being
subject to the statutory penalties for failing to depart voluntarily.
This proposal is intended to allow an opportunity for aliens who
have been granted voluntary departure to be able to pursue
administrative motions without risking the imposition of the voluntary
departure penalties, to promote uniformity, and also to bring the
voluntary departure process back to its statutory premises. The
proposed rule further recognizes that although an alien may request
voluntary departure in good faith before an immigration judge, the
alien's circumstances may change while an appeal is pending before the
Board, and ensures that the alien is not subsequently penalized when
such change in circumstances occurs.
The Department accordingly proposes to amend 8 CFR 1240.26 to
provide for the automatic termination of a grant of voluntary departure
upon the timely filing of a motion to reopen or reconsider, as long as
the motion is filed prior to the expiration of the voluntary departure
period. By seeking to challenge the final administrative order through
a post-decision motion to reopen or reconsider, the alien will be
manifesting that he or she is no longer willing to depart voluntarily
within the specific number of days as previously allowed by the
immigration judge or the Board. Put another way, the alien is no longer
willing to abide by the initial quid pro quo on which voluntary
[[Page 67680]]
departure was predicated. Cf. Banda-Ortiz, 445 F.3d at 389. This means
that the filing of a motion to reopen or reconsider within the time
allowed for voluntary departure would terminate the privilege and
responsibility of voluntary departure, and the alien would become
subject to the alternate order of removal issued by the immigration
judge or the Board. The alien, however, would still be able to pursue
the relief sought through the post-decision motion, and if the motion
to reopen or reconsider is successful, then such an alien would not be
subject to the penalties for failing to depart (including the 10-year
bars on eligibility for adjustment of status or cancellation of
removal). Assuming the alien is otherwise eligible for new relief
sought through the filing of a motion to reopen, and merits a favorable
exercise of discretion, the terminated grant of voluntary departure
would not pose an impediment to reopening to pursue such relief.
Moreover, even if the motion to reopen or reconsider is unsuccessful,
he or she would remain subject to the removal order but would not be
subject to the penalties under section 240B(d) of the Act for failure
to depart. Of course, as with any other alien who is subject to a final
order of removal, DHS is authorized to detain and remove the alien from
the United States at any time pursuant to section 241 of the Act,
unless the order of removal has been stayed.
In the Department's view, extending the period allowed for
voluntary departure by the filing of a motion to reopen or reconsider
serves to undermine the basic statutory purpose of the voluntary
departure agreements, and is not consistent with the Act. See Chedad,
497 F.3d at 64 (``These provisions [relating to limits on voluntary
departure] reflect a coherent effort to ensure that voluntary departure
does, in fact, result in the alien's expeditious departure from the
United States. Reading [the provision allowing for one motion to reopen
within 90 days of a final administrative order] as stopping the
voluntary departure clock would contravene this purpose, allowing the
filing of motions to reopen to delay voluntary departure dates.'').
This proposed rule provides that aliens who file a motion to reopen or
reconsider within the period allowed for voluntary departure are
thereby exempted from the penalties for failure to depart voluntarily
under section 240B(d) of the Act. This approach avoids any perceived
tension between the statutory provisions relating to motions to reopen
or reconsider and the statutory penalties for failure to depart
voluntarily. Since the grant of voluntary departure is terminated
automatically upon the filing of a motion to reopen or reconsider
during the voluntary departure period, there is no period of voluntary
departure to toll during the pendency of the motion to reopen or
reconsider.
E. Motions To Reopen or Reconsider Filed After the Period for Voluntary
Departure Has Elapsed
The issues are very different, however, if the alien's motion to
reopen or reconsider is not filed until after the period of voluntary
departure has elapsed, at a time when--because of the alien's failure
to depart voluntarily within the time allowed--the penalties under 8
U.S.C. 1229c(d), including the 10-year bar on certain forms of
discretionary relief, have already taken effect. If the alien already
has failed to comply with his undertaking voluntarily to depart from
the United States by the time his motion is filed, he is now properly
barred from relief under that section.
In general, where an alien does not file a motion to reopen until
after the expiration of the voluntary departure period, the Board's
grant of reopening does not have the effect of relieving the alien from
the consequences of having failed to depart before the voluntary
departure period expired. See Singh v. Gonzales, 468 F.3d 135, 139-40
(2d Cir. 2006); Dacosta v. Gonzales, 449 F.3d 45, 50-51 (1st Cir.
2006). But cf. Orichitch v. Gonzales, 421 F.3d 595 (7th Cir. 2005)
(holding that the Board's grant of reopening had the effect of vacating
the underlying voluntary departure order where a joint motion to reopen
was executed but not filed prior to expiration of the voluntary
departure period).
With respect to motions to reopen filed after the expiration of the
voluntary departure period, to conclude that the granting of such a
motion would vitiate or vacate the penalties that had already taken
effect because of the alien's previous failure to depart voluntarily
would effectively undermine the relevance of such penalties in this
context. Aliens who are subject to a final order of removal cannot seek
relief from removal from an immigration judge or the Board (such as
adjustment of status or cancellation of removal) unless they are
successful in reopening their final orders. Thus, prior to the granting
of a motion to reopen, such aliens are unable to obtain such relief for
reasons independent of the voluntary departure penalties. However, if
the mere fact of granting a motion to reopen had the effect of vacating
the voluntary departure penalties, after those penalties had already
taken effect as a result of the alien's failure to depart during the
period allowed for the voluntary departure, then the intended effect of
those penalties in deterring aliens from overstaying the period of
voluntary departure would clearly be diminished. Accordingly, this
proposed rule would provide that the granting of a motion to reopen or
reconsider that was filed after the penalties under section 240B(d) of
the Act had already taken effect does not have the effect of vitiating
or vacating those penalties, except as provided in section 240B(d)(2)
of the Act.
The Board recently concluded that there is no equitable basis for
creating an exception to the statutory penalties for aliens who
voluntarily fail to depart during the period allowed for voluntary
departure. Matter of Zmijewska, 24 I&N Dec. 87, 93 (BIA 2007) (``The
congressional repeal of the `exceptional circumstances' exception to
the voluntary departure penalty soon after our decision in Matter of
Grijalva, [21 I&N Dec. 472 (BIA 1996)], and its replacement with a
`voluntariness' test strongly suggest that Congress did not intend to
allow the Board and the courts to create and apply a set of equitable
exceptions that would amount to a substitute version of the repealed
`exceptional circumstances' exception.'').\5\
---------------------------------------------------------------------------
\5\ Matter of Zmijewska does note that Congress has provided one
specific exception to the imposition of the statutory penalties for
failure to depart, with respect to the recently enacted exception in
cases of extreme cruelty or battery. Id. The enactment of one
specific exception for this limited category of cases is evidence of
congressional intent not to contemplate exceptions in other
circumstances.
---------------------------------------------------------------------------
The Board also noted that the statutory penalties do not apply if
the alien was unaware of the voluntary departure order or was
physically unable to depart. See Matter of Zmijewska, 24 I&N Dec. at 94
(finding that the ``voluntariness'' exception is ``limited to
situations in which an alien, through no fault of his or her own, is
unaware of the voluntary departure order or is physically unable to
depart. It would not include situations in which departure within the
period granted would involve exceptional hardships to the alien or
close family members. Nor would lack of funds for departure be
considered an involuntary failure to depart.''). However, the Board's
decision raises broader questions with respect to ineffective
assistance of counsel that are not addressed in this rule.
[[Page 67681]]
V. Voluntary Departure and Filing Petitions for Review
Section 242 of the Act (8 U.S.C. 1252) gives aliens the
opportunity, with certain exceptions, to seek circuit court review of a
final order of removal by filing a petition for review within 30 days
of the final administrative order.
In the experience of the Department, aliens who have been granted
voluntary departure routinely file petitions for review pursuant to
section 242 of the Act and seek a stay, with the result of delaying the
voluntary departure obligation for many months or even years, while the
petition for review is adjudicated in the courts of appeals. This rule
also proposes new measures to avoid such open-ended extensions of the
period of time authorized by Congress for aliens to depart voluntarily.
Again, as noted above, this proposal reflects an exercise of the
Attorney General's authority to implement the voluntary departure
provisions, as well as to limit eligibility for voluntary departure for
certain classes or categories of aliens, as provided in section 240B(e)
of the Act.
A. Divergent Circuit Motions Practice Concerning the Impact on the
Voluntary Departure Period of Filing a Petition for Review
Extensive litigation has resulted from the question of whether a
court of appeals may stay the running of the voluntary departure period
while a petition for review is pending. These decisions have resulted
in a non-uniform, patchwork system of motions practice in the courts of
appeals concerning the effect of filing a petition for review on the
voluntary departure period. No court of appeals has held that the mere
filing of a petition for review automatically stays or tolls the
running of the voluntary departure period. But several circuits have
found that not only do they have authority to stay voluntary departure
periods provided by statute, but that an alien need not even make a
specific request for such a stay, if they file a motion for a stay of
removal. The Sixth, Eighth and Ninth Circuits now follow this course,
construing a request for a stay of removal as a request for a stay of
the voluntary departure period. See Macotaj v. Gonzales, 424 F.3d 464,
466 (6th Cir. 2005); Rife v. Ashcroft, 374 F.3d 606, 614-15 (8th Cir.
2004); Desta v. Ashcroft, 365 F.3d 741, 743 (9th Cir. 2004).
Other circuit courts have allowed for a stay of the voluntary
departure period if it is explicitly requested within the time period.
See Vidal v. Gonzales, 491 F.3d 250 (5th Cir. 2007); Iouri, 487 F.3d at
85; Obale v. United States Att'y Gen., 453 F.3d 151, 156 (3d Cir.
2006); Bocova, 412 F.3d at 268; Lopez-Chavez v. Ashcroft, 383 F.3d 650
(7th Cir. 2004). The Seventh Circuit has required a petitioner to file
a request to extend the voluntary departure period with the district
director to meet the exhaustion requirement. See Alimi v. Ashcroft, 391
F.3d 888, 893 (7th Cir. 2004).
The Fourth Circuit has held that it does not have authority to toll
the period. Ngarurih, 371 F.3d at 194. The Eleventh and Tenth Circuits
have not directly addressed the tolling issue, but have held, as have
all other circuits that have addressed this issue, that the courts of
appeals do not have authority to reinstate or extend the voluntary
departure period. See Nkacoang v. INS, 83 F.3d 353, 357 (11th Cir.
1996); Castaneda v. INS, 23 F.3d 1576, 1578 (10th Cir. 1994).
The circuit courts that held they have authority to stay the
voluntary departure period have based their decision either on the
equitable power of the courts of appeals to issue a stay or on the
theory that 28 U.S.C. 2349 contains a statutory grant of authority.
See, e.g., Obale, 453 F.3d at 155 n.1.
Over the last four fiscal years, in roughly 40% of the cases in
which the alien was granted voluntary departure with an alternate order
of removal, the aliens have filed petitions for review with the courts
of appeals. Voluntary departure is intended as a benefit to both the
alien and the government, operating as an agreement whereby both sides
receive benefits. Chedad, supra. Like tolling during the pendency of a
motion to reopen, suspending the voluntary departure period and the
alien's obligation to depart, during the pendency of a petition for
review, deprives the government of one of the principal considerations
of the underlying voluntary departure agreement--a quick departure
without the considerable expense of protracted litigation. Moreover,
the delays attributable to the pendency of judicial review frequently
result in extending the period allowed for voluntarily departure much
longer than the delays attributable to the filing of administrative
motions with the Board, in some cases allowing an additional two or
three years before the alien is required to depart.
Where the court has stayed the period for voluntary departure, the
alien is not required to depart the United States until the very end of
the litigation process, after exhausting all opportunities for
administrative or judicial relief. But all aliens who have been ordered
removed and have exhausted all opportunities for overturning the final
order are under a legal obligation to depart the United States. Aliens
who benefit from automatic tolling or judicial stays and are permitted
to remain in the United States until the conclusion of all litigation
challenges are effectively allowed to render nugatory the statutory
premise that aliens who seek and are granted voluntary departure are
expected to depart promptly from the United States upon issuance of a
final order, in exchange for the benefits of voluntary departure, which
was granted to them at their own request and was based on their proof
of their intention and ability to depart the United States within the
time allowed.
Moreover, as a legal matter, petitions for judicial review differ
from post-order administrative motions, in that an alien is not
precluded from pursuing such a petition after the alien has departed
from the United States. See, e.g., Zazueta-Carrillo v. Ashcroft, 322
F.3d 1166 (9th Cir. 2003) (``We now may entertain a petition after the
alien has departed. See 8 U.S.C. 1252(b)(3)(B) (replacing 8 U.S.C.
Sec. 1105a(c)).''); Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 n.8-
13 (9th Cir. 2006). This contrasts with motions to reopen or
reconsider, which generally cannot be filed after an alien's departure
and are deemed to be withdrawn by the alien's departure, whether
voluntary or not. Cf. 8 CFR 1003.2(d) and 1003.23(b)(1) (motions before
the Board and immigration judges are deemed withdrawn upon an alien's
departure from the United States).\6\ Thus, an alien is able to depart
from the United States after filing a petition for review without
impairing his or her opportunity to obtain judicial review.\7\ This
means that aliens are able to pursue judicial review while at the same
time also complying with the grant of voluntary departure (though it is
evidently rare as a matter of fact for an alien to depart the United
States within the period allowed for
[[Page 67682]]
voluntary departure after filing a petition for review).
---------------------------------------------------------------------------
\6\ But see William v. Gonzales, 499 F.3d 329, 333 (4th Cir.
2007) (concluding that 8 U.S.C. 1229a(c)(7)(A) ``clearly and
unambiguously grants an alien the right to file one motion to
reopen, regardless of whether he is present in the United States
when the motion is filed.''); Li, 473 F.3d at 982 (interpreting
section 1003.2(d) not to bar the filing of a motion to reopen if the
alien was the subject of a final order of removal at the time of
departure).
\7\ See Mendez-Alcaraz, 464 F.3d at 844 nn.8-13 (holding that
IIRlRA's permanent rules, effective April 1, 1997, ``do not include
the old jurisdiction-stripping provision for excluded, deported, or
removed aliens'' under former 8 U.S.C. 1105a(c); that the court
retains jurisdiction over a petition for review after an alien has
departed; and that a petitioner's removal does not render a case
moot).
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B. The Proposed Rule
This rule would respond to one of the principal policy arguments
offered in support of a stay during the pendency of judicial review.
Under this rule, if an alien decides to contest a final administrative
order by filing a petition for review before departing the United
States, the grant of voluntary departure will be terminated
automatically. Such aliens will no longer have the privilege or
responsibility of departing voluntarily and will become subject to a
removal order, just like every other alien at the conclusion of the
removal proceedings who is not granted any form of relief or protection
from removal. This means, however, that they will be able to pursue
judicial review without the risk of being subject to the statutory
penalties for failing to depart voluntarily.\8\ Again, as with any
other alien who is subject to a final order of removal, DHS is
authorized to detain and remove the alien from the United States at any
time pursuant to section 241 of the Act, unless the order of removal
has been stayed, but the alien's removal would not impair the
availability of judicial review.
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\8\ The Board does not grant voluntary departure for a period of
less than 30 days, which is the same period allowed for the filing
of a petition for judicial review. Thus, we do not foresee any
situation in which an alien would be filing a timely petition for
review after overstaying the period allowed for voluntary departure.
---------------------------------------------------------------------------
Again, this proposal is intended to allow an opportunity for aliens
who have been granted voluntary departure to be able to pursue judicial
review without risking the imposition of the voluntary departure
penalties, to promote uniformity, and also to bring the voluntary
departure process back to its statutory premises. It further recognizes
that although an alien may request voluntary departure in good faith
before an immigration judge, the alien's circumstances may change by
the time the case is decided by the Board, and ensures that the alien
is not subsequently penalized when such change in circumstances occurs.
The Department proposes to amend 8 CFR 1240.26 to provide for the
automatic termination of a grant of voluntary departure upon the filing
of a petition for review. This rule is intended to result in a uniform
application of the effect of the voluntary departure period in all the
circuit courts of appeals. Under this rule, since the grant of
voluntary departure would be terminated automatically if the alien
elects to file a petition for review, there would no longer be any
period of voluntary departure to be stayed or tolled during the
pendency of the judicial review. This rule is consistent with the
congressional intent, as expressed in the 1996 changes to the Act, that
aliens may no longer remain in a period of voluntary departure for
years, but instead are strictly limited to a discrete period of time
for voluntary departure.
The termination of the grant of voluntary departure upon the filing
of a petition for review (or an administrative motion to reopen or
reconsider) does not have the effect, however, of altering the date on
which the Board's decision became administratively final. Existing
regulations provide that a decision by the Board dismissing an alien's
appeal becomes administratively final upon issuance of the Board's
decision, see 8 CFR 1003.1(d)(7), 1241.1, and that is the relevant date
for purposes of section 242 of the Act (8 U.S.C. 1252). The termination
of voluntary departure on account of the alien's actions means that the
alternate order of removal that was entered at the time of the grant of
voluntary departure pursuant to 8 CFR 1240.26(d) takes effect
automatically. The date of the final order remains the date the Board
issued its decision.
We also seek public comment on a related issue relating to
inadmissibility under section 212(a)(9)(A) of the Act (8 U.S.C.
1182(a)(9)(A)). In general, an alien who has been ordered removed is
inadmissible under that section if the alien seeks admission again
within a specified period of five or ten years after the alien's
departure or removal. An alien who leaves under a grant of voluntary
departure has not been ``removed'' and so is not subject to these
grounds of inadmissibility (though he or she may be subject to other
grounds of inadmissibility). As noted above, this rule provides that
the filing of a petition for review would terminate the grant of
voluntary departure, with the result that any alien who files a
petition for review, and does not prevail, thus may be subject to
inadmissibility under section 212(a)(9)(A) of the Act. However, we note
that the Act also allows an alien to maintain his or her petition for
judicial review after departing from the United States, as discussed
above. The Department's general experience is that the number of aliens
who accept a grant of voluntary departure, file a petition for judicial
review, and then actually depart the United States within the time
specified for voluntary departure is very small indeed, but we
recognize the possibility that at least some aliens might do so. Though
we do not make a specific proposal here, we seek public comment on
whether or not it might be advisable (and the possible means for
accomplishing such a result) to consider adopting a rule that those
aliens who do depart the United States during the period of time
specified in the grant of voluntary departure, after filing a petition
for review, would not be deemed to have departed under an order of
removal for purposes of section 212(a)(9)(A) of the Act. Such a
provision may provide an incentive for the alien to pursue his or her
challenge to the validity of the removal order from abroad.
VI. Notice to the Alien Under the Proposed Rule
The provisions of this proposed rule will be applied prospectively
only, that is, only with respect to immigration judge orders issued on
or after the effective date of the final rule that grant a period of
voluntary departure. The existing regulations and precedents will
continue to apply to any order granting voluntary departure issued
prior to the effective date of the final rule.
Currently, an immigration judge's decision advises the alien of the
right to file an appeal with the Board within 30 days of the decision,
and this rule makes no change in that respect since aliens accepting a
grant of voluntary departure will still be able to appeal to the Board
on the merits of the alien's claims of relief or protection from
removal.
To ensure that aliens are aware of the consequences of filing a
motion to reopen or reconsider prior to the expiration of voluntary
departure, the rule amends 8 CFR 1240.11 to provide that the
immigration judge will advise the alien of the consequences of
accepting a grant of voluntary departure and the effect of any
subsequent post-decision motion to reopen or reconsider. In particular,
the alien will be advised that an order of voluntary departure shall be
automatically terminated upon filing a motion to reopen or reconsider,
as long as such a motion is filed before the voluntary departure period
has expired.
Currently, aliens are advised in the notice of decision of the
consequences of failing to depart under section 240B(d) of the Act (8
U.S.C. 1229c(d)) pursuant to an order of voluntary departure. See 8 CFR
1240.13(d). The additional notice proposed by this rule should help to
avoid practical concerns that the alien was not fully aware of the
consequences of filing a motion to reopen or reconsider during the
voluntary departure period. By providing such notice to the alien at
the time of the granting of voluntary
[[Page 67683]]
departure at the conclusion of removal proceedings, the immigration
judge can ensure that the alien understands the relevant principles
applicable to the grant of voluntary departure. The proposed rule also
provides that, if the alien appeals the immigration judge's decision to
the Board, the Board's decision will provide notice to the alien with
respect to the impact of filing a post-order administrative motion to
reopen or reconsider.
In addition, this rule provides that the Board's decision will
provide notice to the alien with respect to the impact of filing a
petition for review. Since the immigration judge's order is appealable
to the Board, an adverse immigration judge decision is not subject to a
direct petition for review to the courts of appeals without a prior
Board decision. See INA 242(d)(1) (8 U.S.C. 1252(d)(1)) (requiring
exhaustion of all administrative remedies available to the alien as of
right). Therefore, there is no reason to require the immigration judge
to advise the alien of the consequences of filing a subsequent petition
for review. However, once the Board has issued its final decision
denying the alien's substantive claims and issuing a final order
granting voluntary departure, this rule provides that the Board's final
order will advise the alien that if the alien files a petition for
review of the order before departing the United States, that will have
the effect of terminating the grant of voluntary departure. At that
point, the alien would be in the same legal position as other aliens
who have been found to be removable and denied relief. The alien will
no longer have the benefit and responsibility of voluntary departure,
but the alien will be able to challenge the merits of the Board's
decision before the court of appeals. If the court stays the execution
of removal order, the alien would be able to remain while the petition
for review is pending. If the alien does not prevail before the court,
then, because the voluntary departure grant was terminated by filing
the petition for review, he or she will not be subject to the penalties
for failing to depart voluntarily.
VII. Other Issues Relating to Voluntary Departure
A. Voluntary Departure Bond
When the immigration judge grants voluntary departure at the
conclusion of the removal proceedings, section 240B(b)(3) of the Act
requires that the alien post a voluntary departure bond, ``in an amount
necessary to ensure that the alien will depart, to be surrendered upon
proof that the alien has departed the United States within the time
specified.'' The current regulation at 8 CFR 1240.26(c)(3) provides
that the voluntary departure bond shall be no less than $500 and must
be posted with the district director within 5 business days of the
immigration judge's order.
DHS is responsible for administering the bond process. In view of
the transfer of authority to DHS, and the establishment of different
adjudicatory and enforcement offices, this rule makes conforming
changes to include references to the Immigration and Customs
Enforcement (ICE) Field Office Director rather than the former
terminology of district director.
Because a voluntary departure bond must be posted promptly after
the issuance of the immigration judge's order granting voluntary
departure, the Department recognizes that some aliens may post a
voluntary departure bond and then later have their grant of voluntary
departure automatically terminated under this rule because the alien
has subsequently filed a motion to reopen or a petition for review. In
all cases, as provided in section 240B(b)(3) of the Act, the purpose of
the voluntary departure bond is to ``ensure that the alien will depart,
to be surrendered upon proof that the alien has departed the United
States within the time specified.'' Accordingly, this rule includes new
provisions addressing the alien's liability for the voluntary departure
bond depending on whether or not the alien does depart the United
States within the time allowed. The fact that the grant of voluntary
departure is subsequently terminated on account of the alien's own
actions to challenge the final administrative order does not undo the
purpose for the posting of the bond. Under any circumstances, the
purpose of the bond is to encourage the alien to depart promptly as
promised.
Thus, in any case where the alien can show he or she is physically
outside the United States within the time allowed, the alien's
voluntary departure bond will not be forfeited, and the bond can be
cancelled or cash can be reclaimed by the alien after his or her
departure from the United States. Once an alien departs the United
States, the alien may follow the rules set forth by DHS for the
voluntary departure bond, which may include proof that the alien
departed within the time allowed even though the grant of voluntary
departure was terminated pursuant to these rules. An alien who posted a
bond will not forfeit it upon the filing of a petition for review, if
the alien can establish that within 30 days after the filing of the
petition for review he or she is physically outside the United States.
However, the proposed rule specifies that the alien's failure to
depart during the time allowed will result in forfeiture of the alien's
bond posted pursuant to a grant of voluntary departure. The purpose of
the bond was to ensure that the alien does depart during the time
allowed, as the alien had promised to do at the time of the immigration
judge's order granting voluntary departure, and the alien's decision
not to depart within that period would preclude the alien from
recouping the amount of the bond. This is currently the result if the
alien simply remains in the United States in violation of the grant of
voluntary departure. This rule would further provide that the same
result would continue to apply if the alien files a post-order motion
to challenge the final order or a petition for review.\9\ However, we
are seeking public comment on this aspect of the rule.
---------------------------------------------------------------------------
\9\ This rule provides that the filing of a motion to reopen,
motion to reconsider, or a petition for review (within the time
allowed for voluntary departure) automatically terminates the grant
of voluntary departure. The rule does not provide that the granting
of voluntary departure is void ab initio; it merely means that the
continuing obligation to depart within the time allowed is
terminated.
---------------------------------------------------------------------------
Finally, the rule provides an exception if the alien is ultimately
successful in overturning, reopening, or remanding the final
administrative order that had denied the alien's claims on the merits
relating to the alien's removability or eligibility for relief. Since,
as discussed above, a grant of voluntary departure at the conclusion of
removal proceedings is only relevant if the alien has already been
found to be removable and ineligible for relief, a subsequent decision
overturning, reopening, or remanding the denial of the alien's claims
on the merits means that the issue of voluntary departure is rendered
moot with respect to the voluntary departure bond.
B. Failure To Post the Mandatory Voluntary Departure Bond
The existing regulations provide that, if the required voluntary
departure bond is not posted within 5 business days, the grant of
voluntary departure shall vacate automatically and the alternate order
of removal will take effect on the following day. 8 CFR 1240.26(c)(3).
Recently, the Board addressed issues relating to the failure to
post a voluntary departure bond in Matter of Diaz-Ruacho, 24 I&N Dec.
47 (BIA 2006). In that case, the alien was granted voluntary departure
but failed to post the voluntary departure bond. The Board denied the
alien's appeal and reinstated the period for voluntary departure. Then,
after the time allowed
[[Page 67684]]
for voluntary departure had already expired, the alien filed a motion
to reopen in order to submit additional evidence in support of his
unsuccessful application for cancellation of removal. Initially, the
Board denied the motion because the alien's failure to depart meant
that the alien had become subject to the statutory 10-year bar on
eligibility for cancellation of removal.
In its precedent decision in Diaz-Ruacho, the Board held that,
because the alien failed to post the voluntary departure bond as
required, the order granting voluntary departure never took effect. In
its decision, the Board concluded that posting of the bond is a
condition precedent, and therefore the consequences and benefits of
voluntary departure did not attach until the bond was posted. The Board
found additional support for this conclusion in the language of the
immigration judge's order and in the regulation, which provided that
the order granting voluntary departure ``shall vacate automatically''
upon the failure to timely post bond. See 8 CFR 1240.26(c)(3). This
meant that the alien was not subject to penalties under section 240B(d)
of the Act for failure voluntarily to depart, and thus he is still
eligible for cancellation of removal.
Though it may be a permissible reading of the language of the
current regulations, this result is not consistent with the statutory
purpose and is not a sound policy approach because the alien's own
default in failing to post a voluntary departure bond, as the alien was
just ordered to do in connection with the order granting voluntary
departure, should not be the trigger that exempts the alien from the
penalties for failure to depart. The purpose of the bond requirement,
as stated in the statute, is to ``ensure that the alien departs within
the time specified,'' and the bond requirement should not be
interpreted to stand this statutory purpose on its head by providing a
ready means for aliens to exempt themselves from the penalties for
failure to depart. Moreover, using the failure to post a bond as the
trigger that vitiates the grant of voluntary departure does not make
practical sense because it is not an open, discrete, affirmative step
and there is no ready process for highlighting the absence of a bond.
In particular, there is no reason to believe that the government
counsel or the immigration judge would be made aware at the time in
many or most cases that a default had even occurred and that the grant
of voluntary departure had been vacated. In many such cases, the Board
may be unaware at the time of a final order reinstating the period of
voluntary departure that the alien's voluntary departure grant had
already been terminated by default even before the alien filed the
appeal with the Board. Under the approach of Diaz-Ruacho, it is
entirely likely in many cases that an alien may depart from the United
States within the time allowed even though the grant of voluntary
departure had already been vacated because of the alien's failure to
post a bond. Later, when it is determined that the alien had failed to
post the bond at the time as required, then there would be an issue
whether such aliens may end up being subject to the 10-year bar on
admissibility under section 212(a)(9)(A)(ii) of the Act because they
actually departed under the alternate order of removal rather than a
grant of voluntary departure.
The Attorney General has decided to amend the language regarding
failure to post bond to make clear that the failure to post a voluntary
departure bond does not exempt the aliens from the obligation to depart
nor does it exempt them from the penalties for failure to depart
voluntarily. An alien who is granted voluntary departure remains liable
for the amount of the bond if he or she voluntarily fails to depart
during the period of time allowed--whether or not the alien files a
motion to reopen or reconsider or a petition for judicial review, or
simply remains in the United States in violation of the grant of
voluntary departure, except as noted above.
It is important, however, to have other provisions in place to
ensure that the voluntary departure bond, when required, is posted
within the period of 5 business days. Since the purpose of the
voluntary departure bond is to ensure that the alien does depart from
the United States, as promised, this proposed rule provides that the
failure to post the bond, when required, within 5 business days is a
violation of the requirement of section 240B(b)(3) of the Act and may
be considered (i) in evaluating whether the alien should be detained
based on risk of flight, and (ii) as a negative discretionary factor
with respect to any discretionary form of relief.
In addition, we seek public comment on whether the rule should also
provide additional sanctions for aliens who fail to post the required
voluntary departure bond by the fifth business day. One such
possibility may be to provide that an alien who posts a required
voluntary departure bond after the fifth business day will not be able
to get a full refund of the bond amount--e.g., a 20% reduction of the
amount to be returned to the alien on account of a late posting of a
required voluntary departure bond.
Finally, this proposal also amends 8 CFR 1241.1(f) with respect to
an alien who waives appeal at the conclusion of the immigration judge
proceedings, but fails to post the required voluntary departure bond
within five business days, as he or she had agreed to do in connection
with the grant of voluntary departure. The waiver of appeal by both
parties means that the immigration judge's order is an administratively
final order. If an alien who has waived appeal fails to post the
required voluntary departure bond within the time allowed, the
alternate order of removal will then take effect after the failure to
timely post bond. This proposal ensures that aliens who waive appeal
before the immigration judge still have an incentive to post bond as
they agreed to do, since the alien's failure to do so would result in a
final order after the fifth business day, and it preserves DHS's
authority to detain an alien who fails to timely post bond, as he or
she is then under a final order of removal. However, if the alien
thereafter does depart within the voluntary departure period, the alien
will not be subject to the penalties under 240B(d) of the Act (8 U.S.C.
1229a(c)(4)(B)) or inadmissibility under 212(a)(9)(A) of the Act.
C. Providing Notice to the Board That the Voluntary Departure Bond Has
Been Posted
As noted above, an alien whose request for voluntary departure is
granted by an immigration judge at the conclusion of removal
proceedings is required to post a voluntary departure bond within five
business days in an amount necessary to ensure that the alien does
depart the United States within the time allowed. The bond is posted at
a DHS office, so under current practice neither the immigration judge
nor the Board is aware of whether an alien has complied with the
obligation to post a bond as he or she had promised to do at the time
of the grant of voluntary departure.
This proposed rule would require that aliens who have been granted
voluntary departure submit proof of having posted the required
voluntary departure bond in connection with the filing of an appeal
with the Board. Since the alien is obligated to post a bond within five
business days of the immigration judge's order, but the appeal to the
Board is due within 30 days of the immigration judge's order, the alien
will have ample time available to obtain proof of the posting of the
bond.
[[Page 67685]]
As in other respects, the burden of proof is on an alien to
establish eligibility for a discretionary form of relief from removal,
see section 240(c)(4)(B) of the Act; 8 CFR 1240.8(d), so it is
reasonable to provide that aliens who are granted voluntary departure
are expected to provide proof of compliance with one of the key
obligations under the grant of voluntary departure. If the alien does
not provide timely proof to the Board that the required voluntary
departure bond has been posted, the Board will not include a grant of
voluntary departure in its final order.\10\
---------------------------------------------------------------------------
\10\ As noted in the previous section of this supplementary
information, however, an alien's failure to post a voluntary
departure bond does not exempt the alien from liability for the
amount of the bond. An alien who fails to post the required bond but
appeals the immigration judge's decision will not be granted
voluntary departure by the Board, but such an alien does remain
liable for the amount of the voluntary departure bond that he or she
had expressly agreed to post.
---------------------------------------------------------------------------
D. Amount of the Monetary Penalty for Failure To Depart Voluntarily
Section 240B(d)(1) of the Act provides that, in addition to being
barred from eligibility for certain discretionary forms of relief for a
period of 10 years, an alien who fails to depart voluntarily as
required ``shall be subject to a civil penalty of not less than $1,000
and not more than $5,000.'' However, there is no process for the
immigration judge to set the specific amount of the penalty, and the
DHS regulations also do not provide a means to calculate the specific
amount of the penalty. Thus, though the grants of voluntary departure
issued by immigration judges and the Board routinely include warnings
about the imposition of a civil penalty for failure to depart
voluntarily, as a practical matter there appears to have been very
little means actually to impose and collect such civil penalties on
aliens who overstay their period of voluntary departure.
In order to give effect to the statutory provision providing for a
civil penalty, and to simplify the administrative process and provide
clear advance notice to the aliens who are seeking voluntary departure,
the proposed rule would set a presumptive amount of $3,000 as the civil
penalty for failure to depart. This amount--which is identical to
provisions in the immigration bills passed by the House and Senate in
the 109th Congress (S. 2611 and H.R. 4437)--would be applicable in
every case in the future unless the immigration judge specifically set
a higher figure at the time of granting voluntary departure.
The collection of the civil penalty is within the enforcement
responsibility of DHS, and not the immigration judge or the Board.
However, in any case where an alien is later seeking discretionary
relief, the immigration judge or the Board may properly take account of
evidence that the alien has failed to pay the required civil penalty,
as a relevant discretionary factor.
VIII. Regulatory Requirements
A. Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities. This rule affects
individual aliens and does not affect small entities, as that term is
defined in 5 U.S.C. 601(6).
B. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector of $100
million or more in any one year and also will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
C. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C.
804). This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
D. Executive Order 12866 (Regulatory Planning and Review)
The Attorney General has determined that this rule is a
``significant regulatory action'' under section 3(f) of Executive Order
12866, Regulatory Planning and Review, and, accordingly, this rule has
been submitted to the Office of Management and Budget for review.
E. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the national Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
The provisions of the Paperwork Reduction Act of 1995, Public Law
104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR
part 1320, do not apply to this rule because there are no new or
revised recordkeeping or reporting requirements.
List of Subjects
8 CFR Part 1240
Administrative practice and procedure, Aliens.
8 CFR Part 1241
Administrative practice and procedure, Aliens, Immigration.
Accordingly, for the reasons stated in the preamble, chapter V of
title 8 of the Code of Federal Regulations is proposed to be amended as
follows:
PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
1. The authority citation for part 1240 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227,
1229(c)(e), 1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203,
Pub. L. 105-100, (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277
(112 Stat. 2681); 8 CFR part 2.
2. Section 1240.11 is amended by adding a new sentence at the end
of paragraph (b) to read as follows:
Sec. 1240.11 Ancillary matters, applications.
* * * * *
(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.
* * * * *
3. Section 1240.26 is amended by:
a. Adding new paragraphs (b)(3)(iii) and (b)(3)(iv);
b. Revising paragraph (c)(3);
c. Adding new paragraphs (e)(1) and (e)(2);
[[Page 67686]]
d. Adding a new sentence at the end of paragraph (f); and by
e. Adding new paragraphs (i) and (j), to read as follows:
Sec. 1240.26 Voluntary departure--authority of the Executive Office
for Immigration Review.
* * * * *
(b) * * *
(3) * * *
(iii) If the alien files a post-decision motion to reopen or
reconsider during the period allowed for voluntary departure, the grant
of voluntary departure shall be terminated automatically, and the
alternate order of removal will take effect immediately. The penalties
for failure to depart voluntarily under section 240B(d) of the Act
shall not apply if the alien has filed a post-decision motion to reopen
or reconsider during the period allowed for voluntary departure. The
immigration judge shall advise the alien of the provisions of this
paragraph (b)(3)(iii).
(iv) The automatic termination of a grant of voluntary departure
and the effectiveness of the alternative order of removal shall not
affect, in any way, the date that the order of the immigration judge or
the Board became administratively final, as determined under the
provisions of the applicable regulations in this chapter.
(c) * * *
(3) Conditions. The immigration judge may impose such conditions as
he or she deems necessary to ensure the alien's timely departure from
the United States. The immigration judge shall advise the alien of the
applicable conditions, including the provisions of this paragraph
(c)(3). In all cases under section 240B(b) of the Act:
(i) The alien shall be required to post a voluntary departure bond,
in an amount necessary to ensure that the alien departs within the time
specified, but in no case less than $500. The voluntary departure bond
shall be posted with the ICE Field Office Director within 5 business
days of the immigration judge's order granting voluntary departure, and
the ICE Field Office Director may, at his or her discretion, hold the
alien in custody until the bond is posted. Because the purpose of the
voluntary departure bond is to ensure that the alien does depart from
the United States, as promised, the failure to post the bond, when
required, within 5 business days may be considered in evaluating
whether the alien should be detained based on risk of flight, and also
may be considered as a negative discretionary factor with respect to
any discretionary form of relief. The alien's failure to post the
required voluntary departure bond within the time required does not
terminate the alien's obligation to depart within the period allowed or
exempt the alien from the consequences for failure to depart
voluntarily during the period allowed. However, if the alien had waived
appeal of the immigration judge's decision, the alien's failure to post
the required voluntary departure bond within the period allowed means
that the alternate order of removal takes effect immediately pursuant
to 8 CFR 1241.1(f), provided that if the alien does depart the United
States during the period allowed for voluntary departure, he or she
shall not be subject to the penalties at INA 240B(d)(1) or to
inadmissibility under section 212(a)(9)(A) of the Act.
(ii) An alien who has been granted voluntary departure shall, in
connection with the filing of an appeal with the Board, submit timely
proof of having posted the required voluntary departure bond. If the
alien does not provide timely proof to the Board that the required
voluntary departure bond has been posted with DHS, the Board will not
include a grant of voluntary departure in its final order.
(iii) If the alien files a post-order motion to reopen or
reconsider during the period allowed for voluntary departure, the grant
of voluntary departure shall terminate automatically and the alternate
order of removal will take effect immediately. If the alien files a
post-order motion to reopen or reconsider during the period allowed for
voluntary departure, the penalties for failure to depart voluntarily
under section 240B(d) of the Act shall not apply.
(iv) The automatic termination of an order of voluntary departure
and the effectiveness of the alternative order of removal shall not
impact, in any way, the date that the order of the immigration judge or
the Board became administratively final, as determined under the
provisions of the applicable regulations in this chapter.
(v) If after posting the voluntary departure bond the alien
satisfies the condition of the bond by departing the United States
prior to the expiration of the period granted for voluntary departure,
and if proof of the alien's departure is timely furnished to the ICE
Field Office Director, the bond may be canceled. The bond also may be
cancelled if, after filing a petition for review, the alien can
establish that within 30 days after such filing he or she is physically
outside the United States. In order for the bond to be cancelled, the
alien must provide proof of departure by such methods as the ICE Field
Office Director may prescribe.
(vi) Because the purpose of the voluntary departure bond is to
ensure that the alien departs the United States within the time
allowed, the automatic termination of a grant of voluntary departure,
on account of a post-order motion to reopen or reconsider or a petition
for review filed by the alien, does not result in the cancellation of
the voluntary departure bond if the alien fails to depart within the
time allowed. However, the voluntary departure bond may be canceled by
such methods as the ICE Field Office Director may prescribe if the
alien is subsequently successful in overturning, reopening, or
remanding the final administrative order.
* * * * *
(e) * * *
(1) Motion to reopen or reconsider filed during the voluntary
departure period. The filing of a motion to reopen or reconsider prior
to the expiration of the period allowed for voluntary departure has the
effect of automatically terminating the grant of voluntary departure,
and accordingly does not toll, stay, or extend the period allowed for
voluntary departure under this section. See paragraphs (b)(3)(iii) and
(c)(3)(ii) of this section.
(2) Motion to reopen or reconsider filed after the expiration of
the period allowed for voluntary departure. The filing of a motion to
reopen or a motion to reconsider after the time allowed for voluntary
departure has already expired does not in any way impact the period of
time allowed for voluntary departure under this section. The granting
of a motion to reopen or reconsider that was filed after the penalties
under section 240B(d) of the Act had already taken effect, as a
consequence of the alien's prior failure voluntarily to depart within
the time allowed, does not have the effect of vitiating or vacating
those penalties, except as provided in section 240B(d)(2) of the Act.
(f) * * * The filing of a motion to reopen or reconsider or a
petition for review has the effect of automatically terminating the
grant of voluntary departure, and accordingly does not toll, stay, or
extend the period allowed for voluntary departure.
* * * * *
(i) Effect of filing a petition for review. If, prior to departing
the United States, the alien files a petition for review pursuant to
section 242 of the Act (8 U.S.C. 1252), or any other judicial challenge
to the administratively final order, any grant of voluntary departure
shall terminate automatically upon the filing of the petition or other
judicial
[[Page 67687]]
challenge and the alternate order of removal entered pursuant to
paragraph (d) shall immediately take effect. The Board shall advise the
alien of the condition provided in this paragraph in writing as part of
an order reinstating the immigration judge's grant of voluntary
departure. The automatic termination of a grant of voluntary departure
and the effectiveness of the alternative order of removal shall not
affect, in any way, the date that the order of the immigration judge or
the Board became administratively final, as determined under the
provisions of the applicable regulations in this chapter. Since the
grant of voluntary departure is terminated by the filing of the
petition for review, the alien will be subject to the alternate order
of removal, but the penalties for failure to depart voluntarily under
section 240B(d) of the Act shall not apply to an alien who files a
petition for review, and who remains in the United States while the
petition for review is pending.
(j) Penalty for failure to depart. The civil penalty for failure to
depart, pursuant to section 240B(d)(1)(A) of the Act, shall be set at
$3,000 unless the immigration judge specifically orders a higher amount
at the time of granting voluntary departure. The immigration judge
shall advise the alien of the amount of this civil penalty at the time
of granting voluntary departure.
* * * * *
PART 1241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED
4. The authority citation for part 1241 continues to read as
follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223,
1224, 1225, 1226, 227, 1231, 1251, 1253, 1255, 1330, 1362; 18 U.S.C.
4002, 4013(c)(4).
5. Section 1241.1 is amended by revising paragraph (f), to read as
follows:
Sec. 1241.1 Final order of removal.
* * * * *
(f) If an immigration judge issues an alternate order of removal in
connection with a grant of voluntary departure, upon overstay of the
voluntary departure period except as provided in the following
sentence, or upon the failure to post a required voluntary departure
bond if the respondent has waived appeal. If the respondent has filed a
timely appeal with the Board, the order shall become final upon an
order of removal by the Board or the Attorney General, or upon overstay
of the voluntary departure period granted or reinstated by the Board or
the Attorney General.
Dated: November 27, 2007.
Michael B. Mukasey,
Attorney General.
[FR Doc. E7-23289 Filed 11-29-07; 8:45 am]
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