Asian Journal- The Filipino-American Community Newspaper

LATE last year, the US Department of Justice, Executive Office for Immigration Review (EOIR) issued a new rule changing the consequences of applying for and being granted voluntary departure (VR) in immigration court, when later filing a Motion to Reopen a case or a Petition for Review to a US Circuit Court. Effective January 20, 2009, the new rule stipulates that any grant of VR terminates upon certain filings after a hearing before an Immigration Judge and that a grant of VR is abandoned if proof of the payment of a VR bond is not provided to the Board of Immigration Appeals (BIA) within 30 days. Although the rule was purportedly issued to protect people who choose to appeal an order of removal while accepting an alternative grant of VR, critics believe that it may unfairly limit a person’s rights in immigration court.

Voluntary Departure, commonly known as "Voluntary Return"(VR) is an application for relief from removal or deportation an individual may request to avoid a forced deportation. Simply stated, it allows the applicant to depart the US in lieu of an order of deportation at his own expense and on or before a date set by the Immigration Judge. While a person may request VR only to avoid a deportation, VR is often requested as an alternative to another, more substantive, form of relief, such as Asylum, Adjustment of Status, or Cancellation of Removal. In these cases, a grant of VR allows the person to leave on his own if the IJ denies the applicant’s main request for relief.

The new rule principally deals with situations in which VR is requested as an alternative form of relief. Previously, a person denied an application for substantive relief but granted voluntary departure for a limited period could appeal the denial of the substantive relief application and the grant of VR would be preserved until after the appeal was decided. While this rule protected many people, it also created anomalous situations when a person granted subsequently sought to reopen the case to apply for new relief. The reason is that if a person overstays the period in which he was granted VR, he is penalized by losing eligibility for adjustment of status and cancellation of removal. In these cases, the grant of VR alone could render the person ineligible for the new relief.

Under the new rule, if a person was granted VR but denied substantive relief and files an appeal, the grant of VR is terminated upon the filing of the appeal. Similarly, a grant of VR terminates upon the filing of a Petition for Review of a decision from the BIA which denied substantive relief but reinstated the IJ’s initial grant of VR. The rule also requires that IJ’s and the BIA provide adequate notice of these conditions and the effect of failing to depart under a grant of VR.

In practice, VR has long been used to allow a person to leave by himself if his application were not granted, and not simply be left with an all-or-nothing option of a grant of relief or deportation. The new rule effectively forces an applicant’s hand into this unpalatable choice. On the other hand, the new rule will prevent the situation where a person becomes eligible for relief, but is ineligible for having overstayed the previous grant of VR. As with any change in the immigration law, the true effects may not become known until the rule is implemented and the lawyers are left to argue over its interpretation.

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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; tel. No. (626) 585-8005. Hanlon Law Group, PC is a "full-service Immigration Law firm." E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it and www.hanlonlawgroup.com

( www.asianjournal.com )

( Published October 17, 2009 in Asian Journal Los Angeles p. C2 )