[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR240.26]

[Page 495-497]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED STATES--Table of Contents
 
                     Subpart C--Voluntary Departure
 
Sec. 240.26  Voluntary departure--authority of the Executive Office for Immigration Review.

    (a) Eligibility: general. An alien previously granted voluntary 
departure under section 240B of the Act, including by the Service under 
Sec. 240.25, and who fails to depart voluntarily within the time 
specified, shall thereafter be ineligible, for a period of ten years, 
for voluntary departure or for relief under sections 240A, 245, 248, and 
249 of the Act.
    (b) Prior to completion of removal proceedings--(1) Grant by the 
immigration judge. (i) An alien may be granted voluntary departure by an 
immigration judge pursuant to section 240B(a) of the Act only if the 
alien:
    (A) Makes such request prior to or at the master calendar hearing at 
which the case is initially calendared for a merits hearing;
    (B) Makes no additional requests for relief (or if such requests 
have been made, such requests are withdrawn prior to any grant of 
voluntary departure pursuant to this section);
    (C) Concedes removability;
    (D) Waives appeal of all issues; and
    (E) Has not been convicted of a crime described in section 
101(a)(43) of the Act and is not deportable under section 237(a)(4).
    (ii) The judge may not grant voluntary departure under section 
240B(a) of the Act beyond 30 days after the master calendar hearing at 
which the case is initially calendared for a merits

[[Page 496]]

hearing, except pursuant to a stipulation under paragraph (b)(2) of this 
section.
    (2) Stipulation. At any time prior to the completion of removal 
proceedings, the Service counsel may stipulate to a grant of voluntary 
departure under section 240B(a) of the Act.
    (3) Conditions. (i) The judge may impose such conditions as he or 
she deems necessary to ensure the alien's timely departure from the 
United States, including the posting of a voluntary departure bond to be 
canceled upon proof that the alien has departed the United States within 
the time specified. The alien shall be required to present to the 
Service, for inspection and photocopying, his or her passport or other 
travel documentation sufficient to assure lawful entry into the country 
to which the alien is departing, unless:
    (A) A travel document is not necessary to return to his or her 
native country or to which country the alien is departing; or
    (B) The document is already in the possession of the Service.
    (ii) The Service may hold the passport or documentation for 
sufficient time to investigate its authenticity. If such documentation 
is not immediately available to the alien, but the immigration judge is 
satisfied that the alien is making diligent efforts to secure it, 
voluntary departure may be granted for a period not to exceed 120 days, 
subject to the condition that the alien within 60 days must secure such 
documentation and present it to the Service. The Service in its 
discretion may extend the period within which the alien must provide 
such documentation. If the documentation is not presented within the 60-
day period or any extension thereof, the voluntary departure order shall 
vacate automatically and the alternate order of removal will take 
effect, as if in effect on the date of issuance of the immigration judge 
order.
    (c) At the conclusion of the removal proceedings--(1) Required 
findings. An immigration judge may grant voluntary departure at the 
conclusion of the removal proceedings under section 240B(b) of the Act, 
if he or she finds that:
    (i) The alien has been physically present in the United States for 
period of at least one year preceding the date the Notice to Appear was 
served under section 239(a) of the Act;
    (ii) The alien is, and has been, a person of good moral character 
for at least five years immediately preceding the application;
    (iii) The alien has not been convicted of a crime described in 
section 101(a)(43) of the Act and is not deportable under section 
237(a)(4); and
    (iv) The alien has established by clear and convincing evidence that 
the alien has the means to depart the United States and has the 
intention to do so.
    (2) Travel documentation. Except as otherwise provided in paragraph 
(b)(3) of this section, the clear and convincing evidence of the means 
to depart shall include in all cases presentation by the alien of a 
passport or other travel documentation sufficient to assure lawful entry 
into the country to which the alien is departing. The Service shall have 
full opportunity to inspect and photocopy the documentation, and to 
challenge its authenticity or sufficiency before voluntary departure is 
granted.
    (3) Conditions. The judge may impose such conditions as he or she 
deems necessary to ensure the alien's timely departure from the United 
States. In all cases under section 240B(b) of the Act, 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 district director within 5 business days of the immigration judge's 
order granting voluntary departure, and the district director may, at 
his or her discretion, hold the alien in custody until the bond is 
posted. If the bond is not posted within 5 business days, the voluntary 
departure order shall vacate automatically and the alternate order of 
removal will take effect on the following day. In order for the bond to 
be canceled, the alien must provide proof of departure to the district 
director.
    (d) Alternate order of removal. Upon granting a request made for 
voluntary

[[Page 497]]

departure either prior to the completion of proceedings or at the 
conclusion of proceedings, the immigration judge shall also enter an 
alternate order or removal.
    (e) Periods of time. If voluntary departure is granted prior to the 
completion of removal proceedings, the immigration judge may grant a 
period not to exceed 120 days. If voluntary departure is granted at the 
conclusion of proceedings, the immigration judge may grant a period not 
to exceed 60 days.
    (f) Extension of time to depart. Authority to extend the time within 
which to depart voluntarily specified initially by an immigration judge 
or the Board is only within the jurisdiction of the district director, 
the Deputy Executive Associate Commissioner for Detention and Removal, 
or the Director of the Office of Juvenile Affairs. 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 an 
application for voluntarily 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.
    (g) Administrative Appeals. No appeal shall lie regarding the length 
of a period of voluntary departure (as distinguished from issues of 
whether to grant voluntary departure).
    (h) Reinstatement of 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.

[62 FR 10367, Mar. 6, 1997, as amended at 67 FR 39258, June 7, 2002]