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THE BENEFITS OF "HARDSHIP": HISTORICAL ANALYSIS AND CURRENT STANDARDS FOR AVOIDING REMOVAL
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By Curtis Pierce
Copyright (c)1999 by West Group. Reprinted with permission of Interpreter Releases.
The humanitarian concept of allowing aliens to obtain immigration benefits by establishing "hardship" exists in many aspects of U.S. immigration law. Often, an alien needs to demonstrate hardship to a close family member who is a U.S. citizen or a lawful permanent resident. The relative is usually an innocent victim, such as a child born on U.S. soil who has violated no immigration law but stands to suffer greatly if his or her parent is ordered deported.
In 1996, Congress changed the "hardship" standard for suspension of deportation cases. Whereas previously applicants for suspension had to show "extreme hardship," now, under the new cancellation of removal standard, applicants must show "exceptional and extremely unusual hardship" to a family member.
This is not, however, the first time that Congress has changed hardship standards. In fact, the history of immigration law going back half a century is marked by shifting hardship standards, as Congress would decide that standards were too lenient or, at times, too strict. Much of the caselaw that developed over time is therefore still relevant for particular types of cases.
The purpose of this article is to provide some perspective for practitioners on the meaning of "hardship" under the immigration laws. It examines the legislative history of various forms of "hardship," as well as how courts and the Board of Immigration Appeals (BIA) have tried to define hardship over the years. The article also highlights a series of cases that shed some light on the term "exceptional and extremely unusual hardship."
A SHORT HISTORY OF "HARDSHIP"
The notion of demonstrating hardship to avoid deportation evolved from the Alien Registration Act of 1940,[1] which amended the Immigration Act of 1917[2] by providing for "suspension of deportation" to aliens whose deportation would result in "serious economic detriment" to a U.S. citizen or permanent resident alien who was the spouse, parent, or minor child of the deportable alien.[3] If the alien satisfied the requirements under the law, the Attorney General in his or her discretion could approve the alien's application and submit the case to Congress. If Congress concurred in the Attorney General's favorable action, the alien's status was adjusted to that of a permanent resident.[4] In 1940, however, the term "hardship" was not yet in the statute.
The "serious economic detriment" standard was perceived as too lenient by the drafters of the Immigration and Nationality Act of 1952.[5] Therefore, the 1952 Act made the requirements for suspension of deportation substantially stricter by requiring physical residence of not less than five years and a showing that the alien's "deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien or his spouse, parent, or child, who is a citizen or an alien lawfully admitted for permanent residence."[6] This "exceptional and extremely unusual hardship" language is the same now used in current law, as discussed below.
Additional notions of hardship were added by various forms of legislation enacted in 1956, 1957, and 1961. In 1956, Congress required that J nonimmigrant exchange visitors must spend a period of time in a foreign residence before adjusting or changing status. Implementing regulations allowed waivers due to hardship.[7] In 1961, Congress amended the residence requirement by specifically allowing waivers based on "exceptional hardship."[8] In 1957, Congress passed legislation allowing waivers of some criminal grounds of exclusion on the basis of extreme hardship to the alien's family members.[9]
The modern version of suspension of deportation came about in 1962, when Congress amended INA § 244(a) to create two categories of applicants. The first category (which included aliens deportable as public charges, aliens who procured a visa by fraud, and others) were eligible for suspension upon showing: (1) seven years of continuous physical presence in the U.S.; (2) good moral character; and (3) "extreme hardship" to the alien or to his or her spouse, parent or child, who is a U.S. citizen or an alien lawfully admitted for permanent residence (former INA § 244(a)(1)).[10] This is the modern version of suspension, which existed for aliens who were issued an Order to Show Cause (OSC) until March 31, 1997, and still exists for certain beneficiaries of the Nicaraguan Adjustment and Central American Relief Act (NACARA).[11] The legislative history to the 1962 legislation stated that the granting of relief would be "predicated on the showing of specified type and degree of personal hardship which might occur in the absence of such relief."[12]
The 1962 law also created a category for more serious violators, who had to demonstrate: (1) 10 years of continuous physical presence in the U.S.; (2) proof of good moral character; and (3) exceptional and extremely unusual hardship, to the alien or to his or her spouse, parent or child who is a citizen of the U.S. or a permanent resident (former INA § 244(a)(2)). As discussed below, the difference between "extreme hardship" and "exceptional and extremely unusual hardship" is murky, but it is clear that Congress envisioned that suspension applicants under the first category (INA § 244(a)(1)) should be treated more leniently.[13]
In 1986, Congress approved a waiver for aliens who are unable to file a "joint petition" for the removal of the conditional basis of residence status, if that status was acquired through marriage. The waiver may be granted if the alien shows "extreme hardship."[14]
Finally, the comprehensive immigration overhaul legislation of 1996 created new "hardship" standards, and amended existing standards in particular situations. These changes, now part of the INA, are discussed below.
HARDSHIP IN CURRENT LAW
The "extreme hardship" standard for suspension of deportation survived for many years, until the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Under the current INA, as amended by the IIRIRA, suspension of deportation has been replaced by "cancellation of removal." According to INA § 240A(b)(1), the Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the U.S. if the alien: (1) has been physically present in the U.S. for a continuous period of not less than 10 years immediately preceding the date of such application; (2) has been a person of good moral character during such period; (3) has not been convicted of an offense under INA §§ 212(a)(2), 237(a)(2) or 237(a)(3); and (4) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a U.S. citizen or a permanent resident.[15]
As this language makes clear, to be eligible for cancellation, an applicant must demonstrate that "exceptional and extremely unusual hardship" would be suffered by a qualifying relative if the applicant were removed. With the exception of current applicants for cancellation under NACARA as well as certain battered spouses and children, it is generally no longer possible to obtain relief from removal by demonstrating hardship merely to the applicant.
In addition to providing relief from deportation or removal for long-term residents, establishing "extreme hardship" can provide relief from removal in other contexts as well. It is often the basis of a waiver for certain categories of immigrants and nonimmigrants. According to INA § 212(e), described in historical terms above, an exchange visitor who wishes to adjust or even change status can obtain a waiver of the two-year foreign residence requirement by demonstrating "exceptional hardship" to his or her spouse or child who is a U.S. citizen or lawful permanent resident.
The INA also provides much relief to battered spouses and children. Under INA § 216(c)(4), also noted above, an alien spouse who is unable to comply with conditions for removing his or her conditional residency (by submitting a joint petition and appearing with his or her spouse for a personal interview) may apply for a waiver from this requirement by demonstrating extreme hardship if removed and that "the qualifying marriage was entered into in good faith" but has ended through no fault of the alien or "the qualifying marriage was entered into in good faith" but the alien spouse or child was battered or was the subject of extreme cruelty.[16] Closely related to this section is INA § 204, which allows battered spouses of immediate relatives to file immigrant petitions on their own behalf.[17]
Battered spouses and children who are not beneficiaries of immigrant petitions may apply for cancellation of removal under relaxed rules. Pursuant to INA § 240A(b)(2), an alien who has been battered or subjected to "extreme cruelty...by a spouse or parent who is a United States citizen or lawful permanent resident" can apply for cancellation by demonstrating continuous physical presence of at least three years, good moral character, and "extreme hardship to the alien, the alien's child, or (in the case of an alien who is a child) to the alien's parent." To reiterate, unlike other applicants for cancellation, a battered spouse or child needs to prove only three years of continuous residence and is not required to demonstrate "extreme hardship" to a qualifying relative.
Demonstrating hardship can also help certain categories of aliens otherwise inadmissible to the U.S. Under INA § 212(h), aliens who are inadmissible because of certain criminal violations (a crime involving moral turpitude, two or more offenses, prostitution, or "serious criminal activity") may apply for a waiver of inadmissibility by establishing to the Attorney General's satisfaction that "the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien."
A hardship standard is also part of the important new three and 10-year bars on admissibility created by the IIRIRA. According to INA § 209(a)(9)(B)(i), aliens who have been unlawfully present in the U.S. for periods of over 180 days or over one year are barred for three and 10 years, respectively, from admission. The statute, however provides that this harsh prohibition may be waived if the alien can demonstrate to the Attorney General's satisfaction that "refusal of admission to such immigrant would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien."[18]
WHAT IS "EXTREME HARDSHIP"?
The exact meaning of "extreme hardship" has been a subject of debate for many years, and the BIA and the federal courts have struggled to try to define the term.
According to Matter of O-J-O-, one of the more recent BIA cases to speak on the matter, the elements required to establish extreme hardship are dependent upon the facts and circumstances peculiar to each case. "Relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists." In each case, the Board held, the trier of fact must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation, e.g., economic detriment due to loss of a job or efforts ordinarily required in relocating or adjusting to life in the native country. Such ordinary hardships, while not alone sufficient to constitute extreme hardship, are considered in the assessment of aggregate hardship, said the BIA. [19]
In determining whether or not "extreme hardship" exists, the BIA noted in Matter of Anderson that the following factors are relevant: "age of the subject; family ties in the United States and abroad; length of residence in the United States; conditions of health; conditions in the country to which the alien is returnable-economic and political; financial status-business and occupation; the possibility of other means of adjustment of status; whether of special assistance to the United States or community; immigration history; position in the community."[20]
The U.S. Supreme Court, in INS v. Wang, held that a narrow interpretation of "extreme hardship" is consistent with the "exceptional nature of the suspension remedy."[21] It should be noted that Wang involved the claim of a middle-class Korean family that had close relatives in Korea, owned significant property and business, and whose allegations of extreme hardship were not "sworn or otherwise supported by evidentiary materials."[22] Therefore, in spite of its strict holding, Wang may be distinguished from many other cases on its facts.
It is also clear that the trier of fact must consider each relevant factor. Courts have found that the BIA abused its discretion when it failed to consider relevant factors. In Jara-Navarrete v. INS, the Ninth Circuit reversed and remanded a matter in which the BIA gave only "cursory treatment" to the applicant's community ties and family ties in the U.S.[23] The court also stressed that the analysis of hardship to U.S. citizen children must be careful and individualized. "Although the BIA found it appropriate to consider briefly the fact that the children may suffer more hardship than when they were younger, it failed to apply the required individualized consideration."[24]
In another relatively recent BIA decision, Matter of Pilch,[25] a respondent from Poland with three U.S. citizen children (ages six, five, and four) was found to be ineligible for suspension of deportation. In evaluating the hardship to the children, the Board noted:
although we find that there will be hardship to the children in the event of their parents' deportation, we do not find that it rises to the level of extreme hardship as required under section 244(a)(1) of the Act....All three children have been exposed to the Polish language by their parents. There is no evidence that the children suffer from any physical or mental disabilities. Moreover, there is no evidence that they would be deprived of educational opportunities if they go to Poland. We also note that the children will have a strong support system of family members when they arrive in Poland, including a brother, grandparents, uncles, and aunts. On this record, we do not find that the children would suffer extreme hardship if they were to reside in Poland with their parents.[26]
Despite these precedents, extreme hardship has remained a difficult standard to pin down. In fact, it would appear that decision makers have had great latitude in determining what constitutes "extreme hardship." Because every case is unique, decision makers could focus on any number of various factors to justify their finding. If a decision maker were favorably inclined toward a particular respondent, the above case law provided a solid basis for determining that "extreme hardship" existed. On the other hand, if a decision maker were inclined to deny a case, the myriad of factors on which he or she could focus would provide an equally sound justification for determining that "extreme hardship" did not exist.
Interestingly, one BIA case decided 30 years ago touched on how similar the suspension standards of hardship can be. In Matter of Ching,[27] a 55-year-old individual with 20 years of residence in the U.S., who was married to a lawful permanent resident, and who possessed a relatively clean criminal record (with the exception of an old narcotics conviction), was found to have demonstrated "extreme hardship," and qualified for suspension of deportation. The Board noted that if necessary, it would have found that the applicant had also demonstrated "exceptional and extremely unusual hardship."[28]
WHAT IS "EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP"?
Practitioners currently writing appellate briefs to the BIA on behalf of clients who were denied cancellation of removal have noticed that there is not yet any recent case law interpreting the term, "exceptional and extremely unusual hardship," as created by the IIRIRA. In the early 1950s, as indicated above, it was necessary to demonstrate "exceptional and extremely unusual hardship" when applying for suspension of deportation pursuant to the statute then in effect. There are several BIA decisions from 1953 and 1954 that applied the phrase "exceptional and extremely unusual hardship." While belonging to a different time and a different statutory framework, these early cases can be used to argue that the term does not have to be narrowly construed or strictly applied.
According to Matter of S-,[29] it is necessary to consider several factors in order to determine whether or not "exceptional and extremely unusual hardship" exists. The factors include: (1) the length of residence in the U.S.; (2) family ties; (3) the possibility of obtaining a visa abroad; (4) the financial burden on the alien of having to go abroad to obtain a visa; and (5) the health and age of this alien.[30] In Matter of S-, the Board determined that the deportation of a 48-year-old single female from the British West Indies with no close family in her native country "would constitute exceptional and extremely unusual hardship to her, because of the length of time she has lived in the United States, because of the length of time it would take her to obtain a visa in her native country, and because of her limited assets."[31]
In Matter of U-,[32] the respondent was a 41-year-old native and citizen of the Philippines. He had resided in the U.S. for 16 of the past 23 years and had three U.S. citizen children as well as a U.S. citizen wife. The Board found that "deportation of this alien would result in 'exceptional and extremely unusual hardship' to him and also to the four United States citizens dependent upon him for their support, due to their hazardous financial situation, the length of the trip he would be required to make in order to obtain a visa and due to the fact that respondent has spent nearly half his life in the United States."[33]
Also relevant is Matter of W-,[34] in which the respondent was a 33-year-old native and citizen of the British Virgin Islands. Her husband was a lawful permanent resident of the U.S. and their five very young children were U.S. citizens. The respondent testified that if she were deported, her husband would not accompany her to the British Virgin Islands because of "poor employment conditions there."[35] The Board concluded that the children would suffer "exceptional and extremely unusual hardship" if the respondent were deported. "If the respondent is required to leave..., serious hardship, both economic and mental, would be suffered by her, her legally resident alien husband, and their five citizen children. It is concluded from the evidence of record that respondent's deportation would result in exceptional and extremely unusual hardship to her, to her spouse, and their five citizen children," the BIA held.[36]
The BIA in Matter of W- was not interpreting the term "exceptional and extremely unusual hardship" literally. At first, the Board characterized the hardship to the respondent and her family as "serious hardship." Presumably in the interests of justice and fairness, the Board held that this "serious hardship" also constituted "exceptional and extremely unusual hardship."
The cases above can be cited to support the proposition that the phrase "exceptional and extremely unusual hardship" does not have to be literally interpreted or strictly construed, or at least not more strictly than "extreme hardship." None of the respondents in the above cases had a debilitating or rare disease that required extraordinary medical care that could only be provided in the U.S. None of the respondents in these cases demonstrated "unusual" circumstances that distinguished their plight from that of many other individuals facing deportation after several years of residence in the U.S. Therefore, the argument can be made that if a respondent meets the other requirements for cancellation of removal, and his or her case is one that otherwise merits the favorable exercise of discretion, an Immigration Judge may determine based on precedent that "exceptional and extremely unusual hardship" exists even if he or she has to apply the term liberally to make such a determination.
Even in cases in which suspension was denied, the Board did not insist on a narrow interpretation of "exceptional and extremely unusual hardship." In Matter of P-,[37] the Board did not find that "exceptional and extremely unusual hardship" existed where the respondent would have no difficulty in immediately applying for an immigrant visa upon his departure. "In the group of cases now before us which have required interpretation of the meaning of that phrase, we have not found the necessary hardship to exist in cases where the applicant was nonquota or came from a country with an open quota, unless he is almost indigent, or is unable to travel, or for some reason would be unable to secure a visa," the BIA stated.[38]
In Matter of S-,[39] the Board found that "exceptional and extremely unusual hardship" did not exist in the case of a Greek family (husband, wife and adult daughter) whose income would not be "materially reduced" if it had to go back to Greece. "While it is true that these aliens own a home in this country, they also own a home in Greece...while it is true that these respondents have acquired friends and acquaintances in this country, they have no dependents or close family American citizen ties here...no business enterprise would be disrupted by requiring them to leave this country."[40] If the Board had been intent on calling for a strict and narrow interpretation of "exceptional and extremely unusual hardship," such an analysis would have been superfluous.
In Matter of W-Y-L-,[41] relief was denied to a Chinese seaman who had deserted his vessel and had no close relatives in the U.S. "He came to this country in 1944 and deserted his vessel notwithstanding the efforts made by this and Allied Governments to keep seamen on ships during the critical period of World War II. Under similar facts and circumstances we have held in the past that suspension of deportation was not warranted."[42] The language here suggests that relief was denied because of the respondent's desertion of his vessel and not because he failed to demonstrate "exceptional and extremely unusual hardship."
In one of the few federal appellate decisions interpreting the phrase "exceptional and extremely unusual hardship," Asikese v. Brownell,[43] the court upheld the deportation of a Greek seaman who had entered the U.S. illegally and then operated a business in Jersey City. The respondent contended that deportation would cause him hardship because he "would lose his business...could not find work in Greece..."[44] The D.C. Circuit relied on the following legislative history for the proposition that "exceptional and extremely unusual hardship" should only be found in cases where deportation of the alien would be unconscionable. According to a Senate Report that accompanied the 1952 legislation:
The term "exceptional and extremely unusual hardship" requires some explanation. The committee is aware that in almost all cases of deportation, hardship and frequently unusual hardship is experienced by the alien or the members of his family who may be separated from the alien. The committee is aware, too, of the progressively increasing number of cases in which aliens are deliberately flouting our immigration laws by the processes of gaining admission into the United States illegally or ostensibly as nonimmigrants but with the intention of establishing themselves in a situation in which they may subsequently have access to some administrative remedy to adjust their status to that of permanent residence. This practice is grossly unfair to aliens who await their turn on the quota waiting lists and who are deprived of their quota numbers in favor of aliens who indulge in the practice. This practice is threatening our entire immigration system and the incentive for the practice must be removed. Accordingly, under the bill, to justify the suspension of deportation the hardship must not only be unusual but must also be exceptional and extremely unusual. The bill accordingly establishes a policy that the administrative remedy should be available only in the very limited category of cases in which the deportation of the alien would be unconscionable. Hardship or even unusual hardship to the alien or to his spouse, parent, or child is not sufficient to justify suspension of deportation. To continue in the pattern existing under the present law is to make a mockery of our immigration system.[45]
Even with this seemingly tough statement, the BIA, in the 1953 and 1954 series of cases, managed to find remedies for individuals facing hardships if deported.
Apart from the above cases, the only BIA decision to have spoken on the "exceptional and extremely unusual hardship" standard in the past 30 years appears to be Matter of Pena-Diaz.[46] In that case, the Board held that the respondent had made the requisite showing of exceptional and extremely unusual hardship where: (1) he had spent almost half of his life in the U.S.; (2) he had been steadily employed; (3) he owned real property; (4) his immediate family members were "well established" as members of society; and (5) his child was undergoing treatment for a congenital heart defect. The record contained numerous affidavits from the applicant's employer as well as friends, neighbors and law enforcement officials.
THE FUTURE OF HARDSHIP
The legislative history of IIRIRA indicates that Congress once again intended to make the requirements for cancellation of removal stricter than those in the past. The sponsors of the IIRIRA explained it in this way:
The managers have deliberately changed the required showing of hardship from "extreme hardship" to "exceptional and extremely unusual hardship" to emphasize that the alien must provide evidence of harm to his spouse, parent, or child substantially beyond that which ordinarily would be expected to result from the alien's deportation. The "extreme hardship" standard has been weakened by recent administrative decisions holding that forced removal of an alien who has become "acclimated" to the U.S. would constitute a hardship sufficient to support a grant of suspension of deportation. See Matter of O-J-O-, Int. Dec. 3280 (BIA 1996). Such a ruling would be inconsistent with the standard set forth in new § 240A(b)(1). Similarly, a showing that an alien's U.S. citizen child would fare less well in the alien's country of nationality than in the U.S. does not establish "exceptional" or "extremely unusual" hardship and thus would not support a grant of relief under this provision. Our immigration law and policy clearly provide that an alien parent may not derive immigration benefits through his or her child who is a U.S. citizen. The availability in truly exceptional cases of relief under § 240(b)(1) must not undermine this or other fundamental immigration enforcement policies.[47]
The assertion that O-J-O- held that becoming merely "acclimated" to the U.S. was sufficient to demonstrate "extreme hardship" is debatable. Moreover, this Conference Report leaves certain fundamental questions unanswered: Where do we draw the line between a child who would "fare less well" versus one who would suffer "exceptional and extremely unusual hardship?" Is it even possible to draw such a line in a scientific and non-arbitrary manner? Clearly, no two cases are exactly alike. For example, suppose from a purely objective standpoint that an alien's U.S. citizen children possessed precisely the same equities and potential hardships as the children in Pilch: the same age, the same economic situation, the same number of family members in the country of parents' nationality, and other factors. There are nevertheless many subjective factors that could provide a solid basis to distinguish such children from their apparent counterparts in Pilch. Perhaps their personal characteristics are such that it is extremely difficult for them to adapt to change (the testimony of a child psychologist could help establish this). As a result, leaving the U.S. and moving to the country of their parents' nationality would be far more traumatic to them than to the Pilch children. Therefore, the argument can be made that what constitutes ordinary hardship to one child could quite conceivably constitute "extreme hardship" or even "exceptional and extremely unusual hardship" to another.
Indeed, the history of hardship in the suspension context demonstrates the importance of looking at the individual facts of each case.[48] When looking at all the factors involved, one will find that many cases actually satisfy the requirement of "exceptional and extremely unusual hardship."
CONCLUSION
The legislative history explaining "exceptional and extremely unusual hardship" in 1996 is no tougher than the legislative history that defined the term in 1952. In fact, the 1952 language, which insisted that relief should only be granted in cases where deportation would be "unconscionable," was arguably even stricter. Therefore, the BIA decisions from the 1950s interpreting "exceptional and extremely unusual hardship" are still good precedent upon which attorneys should rely.
It is hoped that decision makers in 1999 and beyond will approach the phrase "exceptional and extremely unusual hardship" as the BIA did in the 1950s: with an open mind, a sense of fairness, and a willingness to apply the term broadly when justice calls for it. It need not be feared that a finding of "exceptional and extremely unusual hardship" will be contributing to the "flouting" and "mockery" of our immigration system.
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* Curtis Pierce practices immigration law in Los Angeles, California. From 1992-1995, he taught constitutional law at the Sorbonne (University of Paris).
[1] 54 Stat. 670; 8 USC § 451-460 (1940).
[2] 8 USC § 155(c) (1917).
[3] § 19(c) of the Immigration Act of February 5, 1917, as amended by the Act of June 28, 1940, 54 Stat. 672.
[4] Harper & Chase, Immigration Laws of the United States 632 (3d ed. 1975).
[5] H.R. Rep. No. 1365, 82d Cong., 2d Sess., at 62, 63; S. Rep. No. 1137, 82d Cong., 2d Sess., at 25 (1952).
[6] § 244(a)(2) of Act of June 27, 1952, 66 Stat. 163, amending 39 Stat. 889.
[7] INA § 212(e), added by Act of June 4, 1956, 70 Stat. 241. See Hake, "Hardship Waivers for J-1 Physicians," 94-2 Immigration Briefings 13 (Feb. 1994). Congress amended the § 212(e) provisions again in 1970 and 1976. Hake, at 14.
[8] Act of September 21, 1961, Pub. L. No. 87-256, 75 Stat. 527.
[9] Act of September 11, 1957, 71 Stat. 639. This provision eventually became INA § 212(h). See Hake, at 13.
[10] Act of October 24, 1962, Pub. L. No. 87-885, 76 Stat. 1247. See also Harper & Chase, at 636-41; Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 74.07.[5][f] (rev. ed. 1998).
[11] Aliens from Guatemala, El Salvador, and certain countries in Eastern Europe who meet the requirements may apply for cancellation of removal under the more lenient suspension standards pursuant to § 203 of NACARA, enacted as Title II of the District of Columbia Appropriations Act for Fiscal Year 1998, Pub. L. No. 105-100, 111 Stat. 2160 (Nov. 19, 1997). See generally Silverman, Joaquin & Fabie, "Implementation of Suspension of Deportation Under NACARA: Analysis and Practice Issues," 76 Interpreter Releases 229 (Feb. 8, 1999). See also article #1 in this Release.
[12] H.R. Conf. Rep. No. 2552, 87th Cong., 2d. Sess. (1962).
[13] Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 74.07[5][f] (rev. ed. 1998).
[14] INA § 216(c)(4)(A).
[15] INA § 240A(b)(1). See Wettstein, "The 1996 Immigration Act: New Removal Proceedings, Cancellation of Removal, and Voluntary Departure," 73 Interpreter Releases 1677 (Dec. 9, 1996).
[16] § 701(a) of the Immigration Act of 1990, Act of Nov. 29, 1990, Pub. L. No. 101-649, 104 Stat. 4978. See also 8 CFR § 216.5.
[17] § 40401(a), Violent Crime Control and Law Enforcement Act of 1994, Sept. 13, 1994, Pub. L. No. 103-322, 108 Stat. 1796. See also 8 CFR § 204.2(c).
[18] INA § 209(a)(9)(B)(v).
[19] Int. Dec. 3280 (BIA 1996) at 3-4 (quoting Matter of Ige, 20 I&N Dec. 880, 882 (BIA 1994)). In O-J-O-, the Board found that a citizen from Nicaragua who had lived in the U.S. since the age of 13, was educated in the U.S., spoke fluent English, and ran a small trucking business would suffer "extreme hardship" if deported to Nicaragua. A concurring opinion in O-J-O- contains a useful listing of extreme hardship cases over the years. See Matter of O-J-O-, (concurring opinion of Member Holmes). Matter of O-J-O- is discussed in 73 Interpreter Releases 1043 (Aug. 5, 1996). See also Matter of L-O-G-, Int. Dec. 3281 (BIA 1996), discussed in 73 Interpreter Releases 1081 (Aug. 12, 1996).
[20] Matter of Anderson, 16 I&N Dec. 596, 597 (BIA 1978) (quoting H.R. 8713 § 4, 94th Congress).
[21] 450 U.S. 139, 145 (1981). See also Hernandez-Cordero v. U.S. INS, 819 F.2d 558 (5th Cir. 1987) (holding that a court may find that the BIA abused its discretion only in a case "where the hardship is uniquely extreme, at or closely approaching the outer limits of the most severe hardship the alien could suffer and so severe that any reasonable person would necessarily conclude that the hardship is extreme"). See also Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 74.07[5][f] (rev. ed. 1998).
[22] 450 U.S. at 142.
[23] 813 F.2d 1340, 1343-44 (9th Cir. 1986).
[24] Id. at 1343. See also Cerillo-Perez v. INS, 809 F.2d 1419 (9th Cir. 1987). See generally Kurzban's Immigration Law Sourcebook, 704-05 (1998).
[25] Int. Dec. 3298 (BIA 1996).
[26] Id.
[27] 12 I&N Dec. 710 (BIA 1968).
[28] Id. at 714.
[29] 5 I&N Dec. 409 (BIA 1953).
[30] Id. at 410-11.
[31] Id.
[32] 5 I&N Dec. 413 (BIA 1953).
[33] Id. at 415.
[34] 5 I&N Dec. 586 (BIA 1953).
[35] Id. at 587.
[36] Id.
[37] 5 I&N Dec. 421 (BIA 1953).
[38] Id. at 423.
[39] 5 I&N Dec. 695 (BIA 1954).
[40] Id. at 696-97.
[41] 5 I&N Dec. 637 (BIA 1954).
[42] Id. at 638.
[43] 230 F.2d 34 (D.C. Cir. 1956).
[44] Id. at 35.
[45] S. Rep. No. 1137, 82d Cong., 2d Sess. (1952).
[46] 20 I&N Dec. 841 (BIA 1994).
[47] H.R. Conf. Rep. No. 104-828, at 213-14 (1996). See also Wettstein, at 1684.
[48] This does not necessarily mean that "group-specific" hardship determinations or presumptions are invalid, especially for groups of aliens that have been determined by Congress to per se merit more lenient treatment, such as beneficiaries of the NACARA. See article #1 in this Release.
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VOLUNTARY DEPARTURE OR REMOVAL: IS THERE ANY DIFFERENCE?
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Copyright (c) 2001 by West Group. Reprinted with permission of Interpreter Releases.
by Curtis Pierce and John Eric Marot**
According to Supreme Court Justice Louis Brandeis, deportation can deprive an individual of "life, or of all that makes life worth living." A supposed alternative to deportation is a form of relief known as "voluntary departure." Often referred to as a "privilege," voluntary departure used to provide a significant benefit when other forms of relief, such as suspension of deportation, were denied and when the recipient had another way of eventually immigrating to the U.S. Whereas a deported alien needed special permission to return and faced criminal penalties if he or she attempted to return surreptitiously, an alien who voluntarily departed was not subject to such sanctions.
The passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) imposed strict new requirements before individuals in removal proceedings may be granted voluntary departure. When these requirements are considered in conjunction with the 10-year bar on reentry for aliens who have resided in the U.S. unlawfully for over one year, the distinction between voluntary departure and removal becomes blurred.
Prior to the IIRIRA, five years of good moral character, financial means, and a pledge to actually depart the U.S. were essentially all that was required in order to obtain the "privilege" of voluntary departure. In the post-IIRIRA era, an applicant may now have to show a minimum of one year of presence in the U.S., present a travel document, and even agree to post a bond before an Immigration Judge (IJ) can grant voluntary departure. Presumably, the purpose behind these requirements is that, if satisfied, they will ensure the respondent's actual departure from the U.S.
This article examines some of the new requirements for obtaining voluntary departure, particularly, the posting of the bond. It explores the bond requirement and addresses the issue of what an individual gains by posting the bond and whether such posting actually helps ensure the alien's departure from the U.S. The article also analyzes the problem of the 10-year bar when viewed in conjunction with the conditions for obtaining voluntary departure. Specifically, it addresses whether there is truly any difference between the effects of an order of removal and a grant of voluntary departure. Is voluntary departure really a privilege, or is the term "voluntary departure" merely a euphemism for expulsion from the U.S.?
VOLUNTARY DEPARTURE BEFORE THE IIRIRA
Voluntary departure was originally developed and implemented by administrative officers before being incorporated into the statutes in 1940. The 1940 statute provided for voluntary departure before removal proceedings in lieu of deportation to any alien "who has proved good moral character for the preceding five years." The alien could then "depart the United States to any country of his choice at his own expense." The Attorney General was granted the right to deny such relief to any individual whom the Attorney General reasonably believed fell into statutorily specified categories, including drug dealers, document falsifiers, subversives, criminals, and participants in Nazi persecutions. The Anti-Drug Abuse Act of 1988 (ADAA) additionally precluded the grant of voluntary departure to an alien convicted of an aggravated felony.
The regulations eventually allowed voluntary departure to be granted by INS officers in a number of contexts for individuals who were not in deportation proceedings. For example, before the enactment of the Refugee Act of 1980, a device known as extended voluntary departure came into widespread use to allow those unable to return to their homeland owing to ongoing hostilities to prolong their stay in the U.S. Voluntary departure was also available in a variety of other circumstances, usually with the aim of promoting family unity.
As with the current statute, the pre-IIRIRA statute distinguished between voluntary departure sought prior to, as opposed to during, deportation proceedings. Individuals in deportation proceedings had to show good moral character for the preceding five years, as set forth by the 1940 statute. The regulations added the requirement that the applicant have the willingness and means to depart from the U.S. Prior to the IIRIRA, most voluntary departure orders stated that if the respondent did not depart by the specified date, the order would become a deportation order. Also, there was no limit to the length of voluntary departure time allowed. The District Director had the authority to extend the term or add terms and conditions.
The Immigration Act of 1990 amended the INA so that any alien who remained in the U.S. after a grant of voluntary departure would, other than for exceptional circumstances, be ineligible for discretionary forms of relief such as voluntary departure, suspension of deportation, adjustment of status, registry, and change of nonimmigrant status "for a period of 5 years after the scheduled date of departure or the date of unlawful reentry, respectively."
VOLUNTARY DEPARTURE AFTER THE IIRIRA
Section 304(a)(3) of the IIRIRA, which added § 240B to the INA, imposed dramatic restrictions on the privilege of voluntary departure. These restrictions pertain to the length of time voluntary departure may be granted as well as the conditions for obtaining it. In many the ways, the IIRIRA standard is much harder for aliens to meet, and mandates harsh penalties for aliens who fail to comply with the conditions of a grant. For example, INA § 240B(d) imposes a civil penalty of not less than $1,000 and not more than $5,000 for aliens who fail to depart by the period specified. That section also renders such aliens ineligible for a period of 10 years for the relief of cancellation of removal, adjustment of status, change of status, and registry.
As with the prior law, the post-IIRIRA statute distinguishes between voluntary departure granted by the INS and voluntary departure granted by the IJ.
. Voluntary Departure Before the Service
An alien who is not in removal proceedings may apply for voluntary departure directly with the Service. Presumably, voluntary departure in this context would be sought by an alien who had applied for, and been denied, a particular status or visa and who then risked being placed in removal proceedings. In such a scenario, the Service can grant voluntary departure for up to 120 days. The regulations further specify that the "Service may attach to the granting of voluntary departure any conditions it deems necessary to ensure the alien's timely departure from the United States, including the posting of a bond, continued detention pending departure, and removal under safeguards." The alien is also required to present a travel document, such as a passport, permitting lawful entry into the country to which he or she is traveling. The Service may hold such documents for enough time to investigate their authenticity.
The INS cannot grant voluntary departure unless the alien requests it. This provision arguably protects the alien from having the INS order him or her to leave the country pursuant to a grant of voluntary departure when such relief has not been requested.
Even after removal proceedings have begun, the INS can still grant voluntary departure. The regulations allow the INS to revoke a grant of voluntary departure at any time, however, if the INS determines that the application should not have been granted in the first place. Although the Service does not have to notify the applicant before revoking the grant of voluntary departure, the applicant must still receive written notification of the revocation. There are no appeals from such revocation.
. Voluntary Departure Before the IJ
Under the IIRIRA, the INA distinguishes between voluntary departure granted by the IJ at the outset of a hearing and voluntary departure granted by the IJ at the conclusion of a removal proceeding. The former is easier to obtain and provides for a longer duration. Pursuant to INA § 240B(a), voluntary departure before the conclusion of removal proceedings can be granted for a maximum of 120 days and is subject to the following conditions set forth in the regulations: the alien must (1) make the request before or at the master calendar hearing at which the case is initially calendared for a merits hearing; (2) make "no additional requests for relief"; (3) concede removability; (4) waive appeal of all issues; and (5) not have been convicted of an aggravated felony and not be deportable under INA § 237(a)(4) (security grounds, including terrorism).
The language of this regulation is vague and contradictory. As noted above, to apply for voluntary departure pursuant to INA § 240B(a), an alien must forego the right to apply for a form of relief (such as asylum or cancellation of removal) that would normally be presented at a merits hearing. This is what is presumably meant by making "no additional requests for relief." The regulation also states that this request for voluntary departure must be made at "the master calendar hearing at which the case is initially calendared for a merits hearing." Yet if an alien makes 'no additional requests for relief,' the case would in most instances never be calendared for a merits hearing. Hence, the regulation leaves much room for interpretation.
In immigration court, practitioners often apply for voluntary departure "in the alternative," in conjunction with another form of relief. This allows an applicant who is unsuccessful in obtaining a primary form of relief such as asylum, adjustment of status, or cancellation of removal to still receive voluntary departure. Neither the Act nor the regulations use the term voluntary departure "in the alternative." They do, however, discuss voluntary departure "at the conclusion" of the removal proceedings, which is the functional equivalent.
The standards of eligibility for voluntary departure at the conclusion of removal proceedings are quite different from those during removal proceedings, and far more difficult for the alien to meet. At the conclusion of proceedings, the IJ, pursuant to INA § 240B(b), may grant the respondent only up to 60 days, and the following conditions must be met: (1) the alien must have been physically present in the U.S. for at least one year when he or she was served with the Notice to Appear; (2) the alien must have five years of good moral character (this is consistent with pre-IIRIRA law); (3) the alien must not have been convicted of an aggravated felony and must not be deportable under the security grounds of INA § 237(a); and (4) the alien must establish by clear and convincing evidence that he or she has the means and intends to depart the U.S.
To obtain voluntary departure at the master calendar hearing pursuant to INA § 240B(a), an alien does not need to show good moral character. This is one aspect of the IIRIRA that is more generous than the pre-IIRIRA law, which required good moral character in the preceding five years. Nevertheless, while good moral character per se is not required to obtain voluntary departure at this stage of a removal proceeding, the alien must not have been convicted of an aggravated felony or be deportable for espionage or security violations.
Also noteworthy is the fact that an alien who applies for voluntary departure pursuant to INA § 240B(a) does not have to show that he or she has the financial means to depart from the U.S., as was required by the regulations applying the pre-IIRIRA statute.
Certain individuals are ineligible for voluntary departure. First, aliens who fail to appear at a removal hearing and who are then ordered removed in absentia are ineligible for voluntary departure for 10 years. Second, aliens who were previously found inadmissible under INA § 212(a)(6)(A) (present without admission or parole) and who were granted voluntary departure under INA § 240B are ineligible for another grant of voluntary departure. By definition, this includes only aliens found inadmissible and granted voluntary departure on or after April 1, 1997, the effective date of the pertinent IIRIRA provisions. Third, aliens granted voluntary departure who do not depart within the time specifically allotted are ineligible for voluntary departure, cancellation of removal, adjustment of status, change of nonimmigrant classification and registry for 10 years. Finally, a person granted voluntary departure who fails to depart is subject to a civil penalty of between $1,000 and $5,000.
In addition, the regulations specifically require the IJ to couple a grant of voluntary departure with an alternate order of removal. Therefore, an alien who overstays his or her voluntary departure by even one day has in effect received an order of removal.
This raises the question of whether the statute cited above, which penalizes aliens who fail to depart by the time allotted, is really necessary. Because the act of overstaying a grant of voluntary departure converts this grant into an order of removal, the alien who overstays is automatically faced with the consequences of removal. These consequences, which are discussed below, generally include being inadmissible to the U.S. for a period of five, 10, or 20 years. An outstanding order of removal will usually preclude an alien from obtaining discretionary forms of relief, rendering the penalties set forth by INA § 240B(d) somewhat superfluous.
Obtaining voluntary departure at the master calendar hearing is easier and more advantageous than receiving it at the "conclusion" of proceedings. Why the distinction between voluntary departure "prior to completion" and voluntary departure "at the conclusion" of removal proceedings? It would appear that the drafters of the legislation intended to deter aliens from pursuing baseless claims and punish aliens for having vigorously pursued their rights. If someone simply gives up the right to apply for asylum, he or she can obtain the privilege of voluntary departure much more easily. As the Board of Immigration Appeals (BIA or Board) noted in Matter of Arguelles, "Immigration Judges can use section 240B(a) relief to quickly and efficiently dispose of numerous cases on their docket, where appropriate. We accept the need for such a tool and support its purpose."
In both deportation and removal hearings, voluntary departure rests within the discretion of the IJ. An IJ may be justified in denying voluntary departure even if the alien is statutorily eligible. This point was reinforced by the Arguelles case, in which the BIA analyzed the current procedures for requesting voluntary departure pursuant to INA § 240B during the three different stages (i.e., before proceedings commence, prior to the conclusion of the removal hearing, or at the conclusion of the hearing), and compared the requirements for each stage to those of former INA § 244(e). In Arguelles, the alien had been granted voluntary departure five times under the prior law, had left the U.S., and reentered each time without permission. He was nonetheless still eligible to apply for voluntary departure under the current law. The IJ denied the application in his discretion, however, after finding that the equities were outweighed by the adverse factors.
Board Member Lory Rosenberg noted in her Arguelles dissent that in the 1988 case of Contreras-Aragon v. INS, the Ninth Circuit reaffirmed its understanding that "[t]he purpose of authorizing voluntary departure in lieu of deportation is to effect the alien's prompt departure without further trouble to the Service." This raises the question of whether voluntary departure actually has this effect. Clearly, the respondent in Arguelles was not deterred from returning unlawfully to the U.S. even after having promised five times to leave voluntarily.
ARRIVING ALIENS
According to INA § 240B(a)(4), "in the case of an alien who is arriving in the U.S. and with respect to whom proceedings under [§ 240] are (or would otherwise be) initiated at the time of such alien's arrival," voluntary departure is not available. This section only applies to voluntary departure granted prior to completion of proceedings pursuant to INA § 240(a). As a practical matter, however, it would be difficult in most cases for an arriving alien to be eligible for voluntary departure at the conclusion of proceedings since this requires one year of physical presence in the U.S. immediately preceding service of an NTA.
Nevertheless, if an alien travels to the U.S. with an advance parole document, applies for adjustment of status, and receives a denial, he or she could also be placed in removal proceedings and charged with being an arriving alien. Yet due to the wording of the statute, he or she should still be able to apply for voluntary departure pursuant to INA § 240B(a) if he or she had been in the U.S. for one year prior to being served with the NTA. The limiting language of INA § 240B(a)(4) suggests that it only applies to aliens arriving at a port of entry.
THE BOND REQUIREMENT
When voluntary departure is granted at the conclusion of proceedings, the alien is required to post a bond set by the IJ "in an amount necessary to ensure that the alien departs within the time specified, but in no case less than $500." Hence, shortly after a hearing in which voluntary departure is granted in the alternative (but a form of relief which would permit the respondent to lawfully remain in the U.S. is denied), the respondent who intends to appeal the IJ's decision is faced with the decision of whether to post the bond. According to the regulations, "[t]he 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." Because a respondent also has 30 days to appeal the IJ's decision, however, such appeal would also allow him or her to remain in the U.S. regardless of whether the bond is posted.
For many aliens in removal proceedings, the bond requirement can impose a significant financial burden, especially if an entire family is in proceedings. Because the alien has the right to appeal the IJ's decision, and because the filing of this appeal will permit the alien to remain in the U.S. until the appeal has been decided, the respondent may wonder what is gained by the posting of the voluntary departure bond. If the appeal is successful and the form of relief sought by the alien is granted by the BIA, then the posting of the voluntary departure bond probably will prove to have been unnecessary.
Suppose, on the other hand, that the appeal is unsuccessful. The respondent may still question the necessity of having posted the voluntary departure bond. If the alien proceeds to depart from the U.S., he or she avoids the consequences of removal and may recover the bond. But in reality, how many aliens whose cases are denied by the BIA actually depart from the U.S.? Many of these respondents have resided in the U.S. for several years. Many of them have children born here and many other ties that make "voluntary" departure an unlikely act. If the alien fails to depart after posting a bond and losing the appeal, the bond is forfeited and the voluntary departure becomes an order of removal.
Practitioners may be tempted to advise their client that there is no benefit in posting the voluntary departure bond if the respondent intends to appeal and has no actual intention of voluntarily departing from the U.S. even if he or she loses the appeal. In most cases, this advice would be technically correct, though possibly unethical. Suppose, however, a respondent appealing his removal case acquires a new immigration benefit, such as an approved visa petition (I-130 or I-140) shortly after the decision of the BIA upholding the IJ's decision. In this scenario, the respondent would need to be in a period of voluntary departure in order to effectuate properly a motion to reopen and remand, and the posting of the bond will have proven absolutely necessary. Having posted bond, the alien will not be faced with the consequences of an order of removal or of trying to reopen a case after voluntary departure has lapsed.
It should be noted that if an alien attempts a timely motion to reopen following an order of removal as opposed to a grant of voluntary departure, this in some cases may actually be easier to obtain. As Shaar demonstrates, a motion to reopen following voluntary departure must be adjudicated within the period of voluntary departure. Otherwise, the bars on discretionary relief come into play. An alien who has been ordered removed and seeks reopening, however, does not have the additional hurdle of getting his motion adjudicated before voluntary departure lapses. An alien who has been ordered removed must simply comply with the requirement of filing his motion within 90 days of the final administrative order.
REMOVAL
In the event of removal, an alien is barred from entering the U.S. for a period of five, 10 or 20 years. For arriving aliens, the period is five years. In the case of a subsequent removal, the bar is 20 years. An aggravated felon is not permitted to return at any time. In most other cases, the period is 10 years. If the alien reenters unlawfully after removal, the INS may reinstate removal at any time pursuant to INA § 241(a)(5). Such an alien also would be inadmissible under INA § 212(a)(9)(C).
Clearly, an order of removal imposes a severe obstacle to someone seeking to reside lawfully in the U.S. Yet, a grant of voluntary departure can in many cases impose an equally severe impediment.
THREE- AND 10-YEAR BARS
The post-IIRIRA provisions regarding the three and ten year bars support the argument that there is often little difference between an order of removal and the "privilege" of voluntary departure. According to INA § 212(a)(9)(B)(i), an alien who departs after having been unlawfully present in the U.S. for a period of more than 180 days but less than one year is barred from reentering the U.S. for three years. Similarly, an alien who was unlawfully present for one year or more and who departs the U.S. is barred for 10 years from seeking readmission to the U.S. Although individuals in removal proceedings have the right to remain in the U.S., the period in removal proceedings is not considered "lawful presence."
Thus, an individual granted voluntary departure after one year of unlawful presence in the U.S. must wait 10 years outside the U.S. before being permitted to reenter. It should be noted that because of the wording of the statute, an alien who receives an order of voluntary departure during removal proceedings after 180 days of unlawful presence but less than one year is not subject to the three-year bar.
The illogic of this becomes even clearer when one considers that in order to be eligible to apply for voluntary departure in the alternative, or at the "conclusion" of proceedings, an alien must be in the U.S. at least one year prior to the service of the NTA. Therefore, the respondent who is eligible for voluntary departure in the alternative is also in many cases subject to the 10-year bar.
INA § 212(a)(9)(B)(iii) provides for limited exceptions to unlawful presence. Minors, beneficiaries of family unity protection, battered women and children, and aliens with a "bona fide application for asylum pending" who are not employed without authorization "during such period" are not considered to be unlawfully present.
Therefore, suppose an asylum applicant (with no other basis for establishing lawful presence) loses his asylum case before an IJ but receives the alternative relief of 60 days of voluntary departure. If the applicant leaves the U.S. voluntarily and later becomes eligible for a visa, he will not face the 10-year bar provided he can establish that he did not work without authorization during the pendency of his asylum claim and can also establish (most likely before a consular officer in the country from which he sought protection) that his asylum application was in fact "bona fide."
WAIVERS
INA § 212(a)(9)(B)(v) provides for a waiver of the three-and 10-year bars if the alien can demonstrate "extreme hardship" to his citizen or lawful permanent resident spouse or parent. To apply for this waiver, the applicant must present Form I-601 to a consular officer. The application should also include proof of the hardship to the qualifying relative. Such proof will normally include declarations by the qualifying relative, psychological evaluations, medical reports, et cetera. The waiver applications are forwarded to the INS and adjudicated after a possible investigation. The wait at some consulates can be as long as eight months. (In Ciudad Juarez, the wait is approximately nine months.) During the adjudication process, the applicant must remain outside the U.S.
Following an order of removal, if an alien seeks to re-enter the U.S. within the period of time he or she is barred (i.e., five to 20 years), the alien must file an I-212 application. Generally, these applications are filed with the district director having jurisdiction over the place where removal proceedings took place or if the applicant is in the U.S., the district director having jurisdiction over the alien's place of residence. The application must demonstrate why the discretionary relief is warranted in this situation.
Generally, the I-212 waiver takes several years to be processed. Although the statute (INA § 212(9)(A)(iii)) suggests that the alien must be outside the U.S. to obtain this waiver, the regulations allow for the possibility of obtaining this form of relief if the alien is present in the U.S. These regulations, however, are problematic for two reasons. If an alien has unlawfully reentered the U.S. after an order of removal, INA § 241(a)(5) subjects him or her to automatic reinstatement of his order of removal. In addition, the alien who reenters unlawfully after removal is inadmissible pursuant to INA § 212(a)(9)(C).
If on the other hand the alien has not reentered the U.S. unlawfully but has simply remained in the U.S. following an order of removal by an IJ, jurisdiction remains with the Immigration Court. Therefore, the alien must comply with the strict requirements of having his or her case reopened in order to seek relief. Motions to reopen must generally be filed within 90 days of the final administrative decision.
CONCLUSION
It appears that the drafters of the IIRIRA were blind to the realities of aliens facing removal. An alien who has resided in the U.S. for several years, albeit illegally, is not likely to leave the U.S. "voluntarily." Furthermore, it is absurd to suggest that individuals facing removal from the U.S. would abandon the right to apply for a form of relief by the temptation of 60 additional days of voluntary departure. Finally, while the bond requirement may have been intended to assure an individual's voluntary departure from the U.S., it probably has only served to confuse aliens and, perhaps, even many attorneys, as to what is gained by the posting of this bond.
The conclusion seems inescapable that the sections of the INA dealing with voluntary departure and those dealing with unlawful presence were written independently of each other. To be eligible for voluntary departure at the conclusion of proceedings, an alien is often subject to the 10-year bar. When one considers this issue, combined with the fact that overstaying a grant of voluntary departure issued by an IJ by even one day is the equivalent of an order of removal, it is apparent that for many individuals facing expulsion from the U.S., there is no significant difference between a grant of voluntary departure and an order of removal. n
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* Curtis Pierce practices immigration law in Los Angeles, California. He has successfully argued many cases before the Ninth Circuit Court of Appeals, including Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999). He is a graduate of Loyola Law School in Los Angeles and has a B.A. in political science from UCLA. From 1992-1995, he taught constitutional law at the Sorbonne (University of Paris). His firm's web site may be found at http://www.cpvisa-espanol.com.
** John Eric Marot has a Juris Doctor from Loyola Law School in Los Angeles and a Ph.D. in history from UCLA. He has taught history in the University of California and Cal State University systems. The authors wish to acknowledge the invaluable assistance of the following attorneys: Carl Shusterman, Linton Joaquin, Lee O'Connor, Brian Bates, Hon. Juan Osuna, Kathy Alfred, Claudia Slovinsky, Jacqueline Baronian, Claire Cifuentes, Victor Nieblas, Glenn Kawahara, Wade Chernick, Susan Hill, Paul Medved, Marci Ancel, John Gallagher, Max Danziger, Richard Fraade, Jennifer Oltarsh, Alary Piibe, Alan Diamante, Steven Morley, and Garish Sarin.
[1] Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).
[1] Pub. L. No. 104-208, 110 Stat. 3009.
[1] See INA § 212(a)(9)(B)(i)(II).
[1] Section 19(c) and (d), Immigration Act of 1917, as amended by Alien Registration Act of 1940, § 20, 54 Stat. 672-673.
[1] Former INA § 241(a)(2)(C).
[1] Anti-Drug Abuse Act of 1988 (ADAA), § 7343(b), (Pub. L. No. 100-690, 102 Stat. 4181), amending former INA § 244(e)(2). The immigration-related provisions of the ADAA are reported on and reproduced in 65 Interpreter Releases 1119 (Oct. 31, 1988).
[1] 8 CFR § 242.5(a)(2) (1995).
[1] Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 103.
[1] Former INA §§ 242(b) and 244(e), as amended by § 545 of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978.
[1] Former 8 CFR § 244.1.
[1] See, e.g., Matter of Chang, 10 I&N Dec. 14 (BIA 1962). See also Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 74.02[4] (rev. ed. 1999).
[1] See, e.g., Matter of Chouliaris, 16 I&N Dec. 168 (BIA 1977). See also Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 74.02[4] (rev. ed. 1999).
[1] See, e.g., Matter of Palmieri 10 I&N Dec. 187 (BIA 1963). See also Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 74.02[4] (rev. ed. 1999).
[1] Former INA § 242B(e)(2). The bar to discretionary relief only applied to aliens provided both written and oral notice of the consequences of failure to depart.
[1] See 8 CFR §§ 240.25, 240.26.
[1] 8 CFR § 240.25(c).
[1] 8 CFR § 240.25(b).
[1] Id.
[1] 8 CFR § 240.25(c). "Voluntary departure may not be granted unless the alien requests such voluntary departure and agrees to its terms and conditions."
[1] 8 CFR § 240.25(d). If the Service agrees to voluntary departure after proceedings have commenced, it may either "join in a motion to terminate the proceedings" or "join in a motion asking the immigration judge to permit voluntary departure."
[1] 8 CFR § 240.25(f).
[1] Id.
[1] INA § 240B.
[1] 8 CFR § 240.26(b)(1)(i).
[1] See 8 CFR § 240.26(b)(1)(i)(B).
[1] 8 CFR § 240.26(b)(1)(i)(A) (emphasis added).
[1] Citing this regulation, the Board of Immigration Appeals (BIA or Board) in Matter of Arguelles noted that "[I]t is not necessary that the alien request the relief [voluntary departure] at the first master calendar hearing." Int. Dec. 339, at 4 (BIA 1999), reported on in 76 Interpreter Releases 1189, 1193 (Aug. 9, 1999).
[1] INA § 240B(b), 8 CFR § 240.26(c).
[1] INA § 240B(b), 8 CFR § 240.26(c).
[1] See former INA § 244(e).
[1] See INA § 101(f) for a list of what precludes an individual from establishing "good moral character."
[1] INA § 240B(a)(1), 8 CFR § 240.26(b)(1)(i)(E).
[1] Former 8 CFR § 244.1.
[1] INA § 240B(d).
[1] INA § 240B(c).
[1] INA § 240B(d). As noted above, former INA § 242B(e)(2) stated that an alien who remained in the U.S. after an agreed date of voluntary departure "other than because of exceptional circumstances" would be ineligible for five years for voluntary departure, suspension of deportation, adjustment of status, and registry. In the current statute, five years has been changed to 10 and there is no exception for "exceptional circumstances." See INA § 240B(d). It should also be noted that these forms of discretionary relief are all sought in the U.S. Therefore, the ability to procure a visa from a U.S. consulate is not expressly punished by overstaying a period of voluntary departure.
[1] INA § 240B(d).
[1] 8 CFR § 240.26(d).
[1] See INA § 212(a)(9)(A).
[1] Arguelles, Int. Dec. 339 at 8.
[1] The fact that five previous unlawful reentries following five respective grants of voluntary departure did not create a statutory bar to voluntary departure is very likely a legislative oversight. Significantly, the current statute states that an alien who previously was permitted to depart voluntarily under INA § 240B after having been found inadmissible under INA § 212(a)(6)(A), which pertains to aliens present without admission or parole, is not eligible for voluntary departure. INA § 240B(c).
[1] Contreras-Aragon v. INS, 852 F.2d 1088 (9th Cir. 1988), reported on in 65 Interpreter Releases 792 (Aug. 8, 1988).
[1] Arguelles, Int. Dec. 3399 at 9, quoting Contreras-Aragon, 852 F.2d at 1093.
[1] According to 8 CFR § 1.1(q), "the term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry." An arriving alien who is ineligible for voluntary departure may seek to withdraw his request for admission and thereby avoid the consequences of removal.
[1] INA § 240B(b)(1)(A), 8 CFR § 240.26(c)(1)(i).
[1] An alien who attempts to enter with advance parole but is denied entry may be charged as an arriving alien but may not be placed in expedited removal. See 8 CFR § 1.1(q).
[1] 8 CFR § 240.26(c)(3).
[1] Id.
[1] 8 CFR § 3.3, 8 CFR § 240.15.
[1] There are several potential scenarios that are not addressed by the regulations. Suppose a respondent loses his asylum case in court and receives voluntary departure in the alternative. He proceeds to appeal to the BIA without having paid the bond. Can the BIA still grant voluntary departure? It would be prudent for practitioners to assume not. Yet the regulations do not provide a definitive answer to this question.
[1] See 8 CFR § 240.26(c)(3), 8 CFR § 240.26(d).
[1] See, e.g., Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), discussed in Schmidt and Elliot, "Precedent Decisions of the Board of Immigration Appeals: An Update," 73 Interpreter Releases 1101, 1108 (Aug. 19, 1996). See also 75 Interpreter Releases 810, 812 (June 8, 1998).
[1] 8 CFR § 3.2 (c)(2), 8 CFR § 3.23(b)(1). See Matter of Goolcharan, 23 I&N Dec. 5 (BIA 2001) for a definition of final administrative order. See also Matter of Singh, 21 I&N Dec. 998 (BIA 1997), which involved a motion to reopen after an in absentia hearing and explained why Shaar is inapplicable.
[1] INA § 212(a)(9)(A).
[1] INA § 212(a)(9)(A)(i).
[1] Id.
[1] Id. But see 8 CFR § 212.2(a) which suggests that an alien convicted of an aggravated felony who has remained outside the U.S. for 20 consecutive years after "deportation or removal" may be permitted to re-enter.
[1] Id.
[1] As noted above in the discussion of Arguelles, however, an alien who reenters unlawfully after a timely voluntary departure should not have this problem of being subject to automatic reinstatement of the order of removal. But see the recent case Gallo-Alvarez v. Ashcroft, Nos. 00-35238, 99-71038, 00-35289, 2001 WL 1104626 (9th Cir. Sept. 21, 2001), in which a respondent who had been granted voluntary departure but denied suspension of deportation, departed the U.S. pending his appeal to the BIA. The 9th Circuit held that INA § 241(a)(5) applies to individuals who reenter the U.S. unlawfully following grants of voluntary departure as well as orders of deportation. Gallo-Alvarez is reported on in 78 Interpreter Releases 1640 (Oct. 22, 2001).
[1] See INA §212(a)(9)(B)(v), which provides for a waiver if the alien can demonstrate "extreme hardship" to his citizen or lawful permanent resident spouse or parent.
[1] See INA § 212(a)(9)(B)(i). See also Dept. of State Cable dated Apr. 4, 1998, reprinted in 17 AILA Monthly Mailing 5 (May 1998), at 468, 471 et. seq.
[1] See INA § 240B(b)(1)(a).
[1] It should also be noted that students and exchange visitors with a D/S (duration of status) visa are not considered to be unlawfully present until there is a specific determination made by the INS or an IJ. Likewise, applicants with a pending application for adjustment of status are also considered to be in a period of authorized stay. See Memorandum from Michael Pearson, Executive Assoc. Comm'r, INS Office of Field Operations, HQADN 70/21.1.24-P, AD 00-07 (Mar. 3, 2000) at ¶¶ 2B, 3, reported on and reproduced in 77 Interpreter Releases 300, 316-21 (Mar. 13, 2000).
[1] Pursuant to 8 CFR § 208.7(a)(1), an asylum applicant may not request employment authorization until 150 days after the submission of his asylum application. Any delay requested by the applicant tolls the counting toward 150 days. See 8 CFR § 208.7(a)(2). Therefore, if an applicant in immigration court requests additional time to procure an expert witness or to obtain documents from abroad that support his case, this will delay his opportunity to apply for employment authorization.
[1] The INS has defined the term "bona fide" as having "any arguable basis in law or fact." See Memorandum from INS Gen'l Counsel Bo Cooper, HQPGM 70/6.2.6 (June 8, 1999), reported on and reprinted in 76 Interpreter Releases 1289, 1304-10 (Aug. 30, 1999). The determination of whether or not the application was in fact "bona fide" is made by the Headquarters Office of Asylum.
[1] For a discussion of hardship, see Pierce, "The Benefits of Hardship: Historical Analysis and Current Standards For Avoiding Removal," 76 Interpreter Releases 405 (Mar. 15, 1999).
[1] See Meritt and Upadhye, "Consular Processing: Immigrants and Nonimmigrants," 2001-02 Immigration & Nationality Law Handbook, vol. I (American Immigration Lawyers Association (AILA) 2001).
[1] See Kenmore and Slovinsky, "Waivers 2000," 2001-02 Immigration & Nationality Law Handbook, vol. II (AILA 2001).
[1] See 8 CFR § 212.2 An alien seeking a nonimmigrant visa following removal or deportation requests the waiver before a consular officer. Also, an alien filing an I-212 waiver in conjunction with an I-601 for a waiver of excludability under § 212(g), (h), or (i), should file directly with the consulate having jurisdiction over the alien's place of residence. Interestingly, the regulations do not specify where the I-212 is filed for those aliens who need to concurrently file an I-601 based on INA § 212(a)(9)(B)(v), i.e., unlawful presence.
[1] According to Matter of Tin, the adjudicator must consider the following factors: the basis for the deportation, the recency of the deportation, length of residence in the U.S., moral character of the applicant, his respect for law and order, evidence of reformation and rehabilitation, his family responsibilities, any inadmissibility to the U.S. under other sections of law, and hardship involving himself and others. 14 I&N Dec. 371 (Reg'l Comm'r 1973). See also Morley, "Seeking Permission To Reapply For Admission After Deportation or Removal," 2000-01 Immigration & Nationality Law Handbook, vol. II (AILA 2001).
[1] See 8 CFR § 212.2(e), 8 CFR § 212.2(g)(ii)(2).
[1] Depending on the jurisdiction, reinstatement can also be applied to orders of deportation. The Ninth Circuit has held that INA § 241(a)(5) does not apply to individuals whose reentry occurred before April 1, 1997, the effective date of the statute. Castro-Cortez v. INS, 239 F.3d 1037 (9th Cir. 2001). For a summary of Castro-Cortez, see 78 Interpreter Releases 327 (Feb. 5, 2001).
[1] The statute allows for the possibility of an I-212 waiver "10 years after the date of the alien's last departure" and for certain victims of domestic violence. INA § 212(a)(9)(C)(ii).
[1] If the alien remains in the U.S. after being ordered removed and has decided to pursue consular processing, the I-212 can sometimes be adjudicated in advance of the consular interview while the alien is in the U.S., albeit unlawfully. If granted, the applicant can take the approved I-212 to the consular interview. He will likely also have to file an I-601 waiver application because of the unlawful presence.
[1] See 8 CFR §§ 3.2(c)(2), 3.23(b)(1).
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