Mary Giovagnoli, Director of the Immigration Policy Center at the American Immigration Council,...
A grant of voluntary departure means that a person is permitted to depart the United States voluntarily, and typically at his own expense, in lieu of being deported. The LAC has been involved in litigation and advocacy involving the interplay between voluntary departure and the right to file a motion to reopen, and has issued several practice advisories addressing various aspects of voluntary departure.
Voluntary Departure and Motions to Reopen
A person who is granted voluntary departure but does not depart on time may be subject to a monetary fine of up to $5,000 and is barred, for ten years, from obtaining cancellation of removal, adjustment of status, change of status, registry, and voluntary departure. The Board of Immigration Appeals (BIA) long held that the voluntary departure period continues to run during the pendency of a motion to reopen. Matter of Shaar, 21 I&N Dec. 541 (BIA 1996). Thus, because the voluntary departure period often expired before an immigration judge or the BIA adjudicated the motion, often the person seeking reopening became ineligible for the very relief he or she was seeking in the motion.
The LAC filed amicus briefs in a series of cases at the courts of appeals challenging the BIA’s position. This litigation culminated in the Supreme Court’s decision to hear the issue in Dada v. Mukasey, 554 U.S. 1 (2008). The LAC submitted an amicus brief to the Supreme Court. Ultimately, the Court held that voluntary departure recipients must be permitted to unilaterally withdraw a voluntary departure request before the expiration of the voluntary departure period in order “to safeguard the right to pursue a motion to reopen.” The Court, however, rejected the argument that the filing of a motion to reopen automatically tolls the voluntary departure period.
Comments to the Department of Justice's proposed voluntary departure/motion to reopen rule: EOIR Docket No. 163P – Voluntary Departure: Effect of a Motion to Reopen or Reconsider or a Petition for Review, 72 Fed. Reg. 67674 (Nov. 30, 2007) (submitted Jan. 29, 2008).
LAC Practice Advisory: Voluntary Departure: Automatic Termination and the Harsh Consequences of Failing to Depart (July 6, 2009). This Practice Advisory addresses when the voluntary departure period runs and the events that cause automatic termination of a voluntary departure order. The advisory also discusses the serious consequences that result from failing to depart, when these consequences apply, and importantly, when they do not apply.
LAC Practice Advisory: Voluntary Departure Q&A (December 22, 2008). This Q&A provides an overview of EOIR's voluntary departure regulations which went into effect on January 20, 2009. The regulations address various aspects of voluntary departure, including the effect of filing motions to reopen and reconsider and petitions for review.
LAC Practice Advisory: Dada v. Mukasey Q&A: Preliminary Analysis and Approaches to Consider (June 17, 2008). This Q&A offers preliminary analysis about the potential impact of Dada v. Mukasey on individual cases and suggestions about immediate steps to take if your client’s case is affected by the Supreme Court’s decision. In Dada, the Supreme Court protected the right to file a motion to reopen by holding that a voluntary departure recipient may unilaterally withdraw a voluntary departure request before the expiration of the voluntary departure period.