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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: December 18, 2008 (Volume 73, Number 244)]
[Rules and Regulations]               
[Page 76927-76938]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de08-8]                         

-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1240 and 1241

[EOIR Docket No. 163; AG Order No. 3027-2008]
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: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Justice is publishing this final rule to 
amend the regulations regarding voluntary departure. This rule adopts, 
without substantial change, the proposed rule under which a grant of 
voluntary departure is automatically withdrawn upon the filing of a 
motion to reopen or reconsider with the immigration judge or the Board 
of Immigration Appeals (Board) or a petition for review in a federal 
court of appeals. This final rule adopts, with some modification, the 
proposed rule under which an immigration judge will set a presumptive 
civil monetary penalty of $3,000 if the alien fails to depart within 
the time allowed. However, this rule adopts only in part the proposals 
to amend the provisions relating to the voluntary departure bond. 
Finally, this rule adopts the notice advisals in the proposed rule and 
incorporates additional notice requirements in light of public 
comments.

DATES: This rule is effective January 20, 2009.

FOR FURTHER INFORMATION CONTACT: John Blum, 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

    The Attorney General published a proposed rule in the Federal 
Register on November 30, 2007 (72 FR 67674). The comment period ended 
on January 29, 2008. Comments were received from nine commenters, 
including public interest law and advocacy groups, a law firm, three 
non-attorneys, and one immigration bond agency. Since some comments 
overlap, and other commenters covered multiple topics, the comments are 
addressed by topic in sections III-VIII of this preamble, rather than 
by reference to each specific comment and commenter.

II. Introduction

A. 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)). Voluntary departure 
``is a privilege granted to an alien in lieu of deportation.'' Iouri v. 
Aschroft, 487 F.3d 76, 85 (2d Cir. 2007), cert. denied, 128 S.Ct. 2986 
(2008) (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 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

[[Page 76928]]

to depart voluntarily. 72 FR at 67674-75.
    Section 240B of the Act provides that an alien who is granted 
voluntary departure at the conclusion of removal proceedings is allowed 
a period of no more than 60 days after the issuance of a final order in 
which the alien may voluntarily depart from the United States, and 
certain penalties apply to aliens who do not voluntarily depart within 
the time allowed. See INA 240B(b)(2), (d) (8 U.S.C. 1229c(b)(2), (d)). 
Another section of the Act provides that an alien has up to 90 days to 
file a motion to reopen or 30 days to file a motion to reconsider after 
entry of a final administrative order issued in removal proceedings. 
INA 240(c)(6), (7) (8 U.S.C. 1229a(c)(6), (7)). Under longstanding 
regulation, however, an alien's departure from the United States, 
including under a grant of voluntary departure, has the effect of 
withdrawing the motion. 8 CFR 1003.2(d), Matter of Armendarez, 24 I&N 
Dec. 646, 686 (BIA 2008) (noting that the current regulation bears a 
strong resemblance to the regulation first introduced in 1952).

B. Summary of Regulatory Changes From the Proposed Rule

    The proposed rule explained that the amendments set forth therein 
were ``intended to allow an opportunity for aliens who have been 
granted voluntary departure to be able to pursue administrative motions 
and 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.'' 72 FR at 
67679, 67682. The proposed rule provided an in-depth background 
discussion of voluntary departure and motions to reopen and reconsider. 
Id. at 67674-77. This final rule adopts, without change, the sections 
of the proposed rule providing that an alien's grant of voluntary 
departure will automatically terminate if the alien files a motion to 
reopen or reconsider with an immigration judge or the Board within the 
time period the alien was granted to depart voluntarily.
    The proposed rule also sought to address divergent motions practice 
among the courts of appeals concerning the impact on the voluntary 
departure period when filing a petition for review. See 72 FR at 67681. 
This final rule adopts, without change, the sections of the proposed 
rule providing that an alien's grant of voluntary departure 
automatically terminates upon the filing of a petition for review.
    The proposed rule provided for additional notice to aliens 
regarding the consequences of filing a motion to reopen or reconsider, 
or a petition for review after a grant of voluntary departure. This 
final rule adopts those amendments, without change, and includes 
additional notice requirements in light of public comments.
    The rule also specified that an immigration judge shall set a 
specific dollar amount of less than $3,000 as a civil monetary penalty 
in the event that the alien fails to depart voluntarily within the time 
allowed. This final rule adopts modified language providing that an 
immigration judge will set a presumptive civil monetary penalty of 
$3,000 unless the immigration judge sets a higher or lower amount at 
the time of granting voluntary departure.
    Further, the proposed rule revised the applicable bond provisions 
to clarify that an alien's failure to post a voluntary departure bond 
as required did not have the effect of exempting the alien from the 
penalties for failure to depart under the grant of voluntary departure. 
This was a reversal of the Board's decision in Matter of Diaz-Ruacho, 
24 I&N Dec. 47 (BIA 2006). The final rule adopts without change the 
proposed rule regarding reversal of Matter of Diaz-Ruacho.
    Finally, the proposed rule provided that the alien remained liable 
for the amount of the voluntary departure bond if he or she did not 
depart as agreed, and that failure to post the bond could be considered 
as a negative discretionary factor in determining whether the alien is 
a flight risk and in determining whether to grant a discretionary 
application for relief. Under certain circumstances, however, the 
proposed rule provided that an alien could get a refund of the bond 
amount upon proof that he or she was physically outside the United 
States or if the final administrative order was later overturned, 
reopened, or remanded. This final rule does not include the language of 
the proposed rule that an alien forfeits his or her bond upon automatic 
termination of voluntary departure due to the filing of a motion to 
reopen or reconsider or petition for review. That issue raises a 
question about the scope of the authority of the immigration judges and 
the Board, on the one hand, and the authority of the Department of 
Homeland Security (DHS) with respect to bond issues. Accordingly, the 
final rule takes no position at this time with respect to the 
forfeiture of bond, and language providing for forfeiture of the 
voluntary departure bond upon the filing of a motion to reopen or 
reconsider or the filing of a petition for review has been deleted. 
Because this final rule is not adopting the changes regarding 
forfeiture of the bond, there is no need to adopt the provisions for a 
refund upon proof of being physically outside the country. However, 
this final rule adopts, in part, the proposed rule regarding the 
circumstances under which an alien can obtain a refund of the bond 
amount where the final administrative order is overturned or remanded, 
and the rule that failure to post the bond could be considered as a 
negative discretionary factor in determining whether the alien is a 
flight risk or whether to grant a discretionary application for relief.

III. Relationship Between Voluntary Departure and Motions To Reopen or 
Reconsider

A. The Proposed Rule

    While four courts of appeals had held that the alien's filing of a 
motion to reopen with the Executive Office for Immigration Review 
(EOIR) within the time allowed for voluntary departure automatically 
``tolled'' the voluntary departure period, thereby allowing the alien 
to remain in the United States under the grant of voluntary departure 
until after the immigration judge or the Board had adjudicated the 
motion,\1\ three other courts of appeals have held that the filing of a 
motion to reopen did not toll the period allowed for voluntary 
departure.\2\
---------------------------------------------------------------------------

    \1\ See Ugokwe v. United States Att'y Gen., 453 F.3d 1325, 1331 
(11th Cir. 2006); 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); Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir. 2005).
    \2\ See Chedad v. Gonzales, 497 F.3d 57, 63-64 (1st Cir. 2007); 
Dekoladenu v. Gonzales, 459 F.3d 500, 507 (4th Cir. 2006); Banda-
Ortiz, 445 F.3d at 389.
---------------------------------------------------------------------------

    The proposed rule sought to address this circuit split by amending 
the voluntary departure regulations to provide that an alien's timely 
filing of a motion to reopen or reconsider prior to the expiration of 
the voluntary departure period automatically terminates the grant of 
voluntary departure. Because the grant of voluntary departure would be 
terminated upon the filing of such a motion, there would be no 
remaining voluntary departure period and thus no tolling of the period 
allowed for voluntary departure upon the filing of the motion. In the 
Department's view, this course of action would protect aliens who file 
administrative motions within the voluntary departure period from 
facing the consequences of failing to depart pursuant to a voluntary 
departure order, such as the loss of eligibility for certain forms of 
relief.

[[Page 76929]]

B. Dada v. Mukasey and Related Changes to the Proposed Rule

    On June 16, 2008, the Supreme Court decision in Dada v. Mukasey, --
-- U.S. ---- , 128 S.Ct. 2307 (2008), resolved the split among the 
courts of appeals concerning how the filing of a motion to reopen 
impacts a grant of voluntary departure. The alien in Dada had requested 
that an immigration judge continue his removal proceedings pending the 
adjudication of a second visa petition filed on his behalf by his 
United States citizen spouse. The immigration judge denied the request, 
and granted the alien a period of voluntary departure pursuant to 
section 240B(b) of the Act. The Board dismissed the alien's appeal and 
reinstated the grant of voluntary departure for a 30-day period. Two 
days before the end of the period allowed for voluntary departure, the 
alien filed a motion to reopen with the Board, asserting that he had 
new evidence to support the bona fides of his marriage, and requesting 
a continuance until his visa petition was adjudicated by DHS. The alien 
also sought to withdraw his request for voluntary departure. Several 
months later, the Board denied reopening and cited section 240B(d) of 
the Act, which bars an alien from adjustment of status and other relief 
when he or she fails to depart voluntarily within the permitted period. 
The Board did not address the respondent's request to withdraw his 
voluntary departure request.
    The respondent subsequently filed a petition for review with the 
United States Court of Appeals for the Fifth Circuit, which affirmed 
the Board's decision, concluding that there was no automatic tolling of 
the voluntary departure period.
    On certiorari, the Supreme Court considered the situation faced by 
an alien who abides by a voluntary departure grant and departs within 
the time allowed. If the alien had filed a timely motion before he or 
she departed under the grant of voluntary departure, the alien's 
departure, pursuant to regulation, would have the effect of withdrawing 
the motion to reopen. Alternatively, if the alien chose to remain in 
the United States to await a decision on the motion, he or she could 
then become ineligible for the relief sought in the motion because in 
most instances the motion would not be adjudicated until after the 
voluntary departure period had expired, exposing the alien to the bars 
under section 240B(d) of the Act. The Court framed the issue as 
``whether Congress intended the statutory right to reopen to be 
qualified by the voluntary departure process.'' Dada, 128 S.Ct. at 
2311. The Court concluded that, under the current regulations, an alien 
does not knowingly give up the right to file a motion to reopen once he 
or she accepts voluntary departure.
    The Court rejected the alien's contention that there should be 
``automatic tolling'' of the period of voluntary departure upon the 
filing of a motion to reopen or a motion to reconsider removal 
proceedings before the immigration judge or the Board. The Court 
concluded that such an interpretation ``would reconfigure the voluntary 
departure scheme in a manner inconsistent with the statutory design,'' 
and it found no ``statutory authority for this result.'' Dada, 128 
S.Ct. at 2311, 2319.
    In its decision, the Court held that ``[a]lthough a statute or 
regulation might be adopted to resolve the dilemma in a different 
manner, as matters now stand the appropriate way to reconcile the 
voluntary departure and motion to reopen provisions is to allow an 
alien to withdraw the request for voluntary departure before expiration 
of the departure period.'' Id. at 2311.
    The Department has considered whether to adopt the Court's approach 
in Dada in this final rule, rather than the automatic termination 
approach set forth in the proposed rule. The Department has also 
considered whether to incorporate the Court's suggestion that ``[a] 
more expeditious solution to the untenable conflict between the 
voluntary departure scheme and the motion to reopen might be to permit 
an alien who has departed the United States to pursue a motion to 
reopen postdeparture.'' Id. at 2320. For the reasons explained below, 
the Department is adopting the automatic termination approach set forth 
in the proposed rule, and thereby is ``resolv[ing] the dilemma in a 
different manner.'' Id. at 2311.

C. Termination of Voluntary Departure Upon the Filing of a Motion To 
Reopen or Reconsider

    The proposed rule provided that the filing of a motion to reopen or 
reconsider would have the effect of automatically terminating the grant 
of voluntary departure. Because voluntary departure is ``an agreed upon 
exchange of benefits between the alien and the Government [that] 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,' 
'' 72 FR at 67675 (internal citations omitted), the proposed rule took 
the position that an alien's decision to challenge a final 
administrative order through a post-decision motion or petition for 
review demonstrates that ``the alien is no longer willing to abide by 
the initial quid pro quo.'' Id. at 67679. Instead, an automatic 
termination of an alien's grant of voluntary departure upon the filing 
of a motion to reopen or reconsider would allow the alien to remain in 
the United States to pursue the motion or petition without becoming 
subject to the penalties for failure to voluntarily depart. Id. at 
67680.
    Several commenters challenge the Department's characterization of 
the quid pro quo aspect of voluntary departure in the proposed 
regulation and the proposal to automatically terminate voluntary 
departure upon the filing of a post-decision motion to reopen or 
reconsider. In addition, several of these commenters suggest, as an 
alternative to the proposed automatic termination rule, that the 
regulations be amended to provide for the tolling or administrative 
stay of voluntary departure during the filing of a motion to reopen or 
reconsider, or that the immigration judges and the Board be given the 
discretion to waive the automatic termination procedure and stay or 
reinstate voluntary departure when appropriate.\3\ One commenter 
suggests that the voluntary departure time could be improved by 
changing the expiration date on the voluntary departure order to a 
suitable time, taking into account when the case can be reopened and 
when it will most likely be completed.
---------------------------------------------------------------------------

    \3\ With regard to reinstatement, the ability to reinstate 
voluntary departure is already covered under the current regulations 
in the context of permitting reinstatement of voluntary departure in 
a proceeding which has been reopened for another purpose if 
reopening was granted prior to the expiration of the original period 
of voluntary departure. 8 CFR 1240.26(f), (h).
---------------------------------------------------------------------------

    As the Supreme Court recognized in Dada, there is no statutory 
authority for tolling. Id. at 2311, 2319; see also section 240B(b)(2) 
of the Act (providing for no more than 60 days to voluntarily depart). 
To the extent the commenters were relying on previous appellate 
decisions to the contrary, those holdings have now been overruled. 
Further, as the proposed rule explained, tolling the period of 
voluntary departure deprives the government of an important element of 
the voluntary departure agreement--``a quick departure without the 
considerable expense of protracted litigation.'' 72 FR at 676814.\4\ 
Thus, after

[[Page 76930]]

the issuance of a final order, immigration judges and the Board cannot 
stay the voluntary departure period, or extend the expiration of the 
voluntary departure period, beyond the amount of time provided by 
statute.
---------------------------------------------------------------------------

    \4\ It is the considerable expense of protracted litigation that 
negates any savings to the government of avoiding the costs of 
removal. The Department has not ignored avoiding the costs of 
removal as a potential benefit for savings through a voluntary 
departure grant, as suggested by several commenters. Rather, the 
Department is equally deprived of this benefit where an alien fails 
to quickly depart in accordance with a voluntary departure order.
---------------------------------------------------------------------------

    The Court's decision also discusses the quid pro quo benefits to 
the government and the alien in much the same way as the proposed rule. 
Dada, 128 S.Ct. at 2314. The Court found that allowing an alien to 
elect to withdraw voluntary departure before the expiration of the 
voluntary departure period ``preserve[d] the alien's right to pursue 
reopening while respecting the government's interest in the quid pro 
quo of the voluntary departure arrangement.'' Dada at 2319. 
Accordingly, this final rule retains the quid pro quo analysis of the 
proposed rule as a basis for these regulatory amendments. See 72 FR at 
67675-76, 67679-80.
    This final rule also retains the proposal that an alien's grant of 
voluntary departure will automatically terminate upon the filing of a 
motion to reopen or motion to reconsider. In Dada, the Court provided 
the alien with a different option: a unilateral right to withdraw from 
the voluntary departure agreement in connection with the filing of a 
motion to reopen or reconsider. Dada, 128 S.Ct. at 2319. The Department 
does not believe that this is the best approach to adopt by rule for 
the future, for several reasons.
    First, the Department finds it preferable to adopt the proposed 
rule that was subject to a comment period, rather than delay finalizing 
this new rule for further consideration of the Dada approach. Second, 
allowing the option of withdrawal would seem to require an immigration 
judge to provide additional advisals to an alien regarding another 
aspect of the bargain to which the alien is agreeing. The Department is 
concerned that the growing number of advisals surrounding voluntary 
departure creates the potential for confusion and unnecessary 
complexity; this would be especially true for the many pro se aliens 
who appear before immigration judges. The Department is considering the 
use of an application form to request voluntary departure, which can 
then set forth all of the necessary advisals for voluntary departure. 
However, we do not want to delay publication of this final rule for 
development and implementation of a form. Further, even with a form 
that includes advisals, the option to withdraw might continue to be 
difficult to navigate.
    Finally, allowing an alien the option to withdraw from voluntary 
departure carries the potential for confusion, inadvertent omissions of 
withdrawal requests, and collateral challenges over whether the alien 
actually intended, or should have sought, to withdraw voluntary 
departure in filing a motion. For instance, an alien filing a motion to 
reopen to seek adjustment of status might either intend to request 
withdrawal but fail to include the request, or not know to make the 
request. The alien might later argue that the motion should have been 
construed as a request for withdrawal since he or she would not 
otherwise be eligible for the relief sought if the voluntary departure 
bar applies. The automatic termination rule is more clear-cut and saves 
the Department from having to dedicate additional resources to a second 
round of collateral litigation.
    This rule will apply to motions filed before immigration judges and 
the Board. For instance, some aliens file motions to reopen with 
immigration judges before seeking appeal with the Board. In this case, 
the alien's voluntary departure would be terminated upon the filing of 
the motion with the immigration judge. If, while the alien's motion is 
pending with the immigration judge, the alien subsequently files a 
Notice of Appeal with the Board, the Board assumes jurisdiction over 
the case, and the motion becomes nugatory. In this instance, the Board 
may reinstate the alien's voluntary departure, if the alien 
demonstrates, as set forth in the rule, that he or she properly posted 
the voluntary departure bond within the required time period. See 
Section VI, infra, for further discussion regarding notice to the 
immigration judge or the Board that the bond was posted.
    Several commenters took issue with this automatic termination rule 
and asserted that if an alien is forced to give up voluntary departure 
to pursue a motion, the alien would be improperly discouraged from 
filing a motion to reopen. These comments note examples of applicants 
for asylum who benefit from voluntary departure by being able to choose 
the country to which they will depart, or by returning to their home 
countries without the ``high profile that accompanies deportation.''
    The Department is cognizant of the various ways in which aliens 
benefit from voluntary departure. However, the Department must balance 
these considerations against the overriding responsibility to implement 
the voluntary departure process in accordance with its statutory 
premises. There is no statutory authority for tolling. See Dada, 128 
S.Ct. at 2311, 2319; see also INA 240B(b)(2) (providing for no more 
than 60 days voluntary departure when granted at the conclusion of 
proceedings). Therefore, expiration of the voluntary departure period 
cannot be changed beyond the amount of time provided by statute.
    Even the approach taken by the Supreme Court in Dada requires the 
alien to make a choice: ``As a result, the alien has the option either 
to abide by the terms, and receive the agreed-upon benefits of 
voluntary departure, or, alternatively, to forgo those benefits and 
remain in the United States to pursue an administrative motion.'' Dada, 
128 S.Ct. at 2319. As the proposed rule recognized, ``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.'' 72 FR at 67677. Thus, even if the filing 
of a motion did not result in automatic termination of voluntary 
departure, an alien who was granted voluntary departure and later files 
a motion to reopen to apply for asylum is going to be faced with a 
choice because it is unlikely that the alien's motion would be 
adjudicated in enough time to allow the alien to depart within the 
limited time period permitted for voluntary departure if the motion is 
denied. See Dada, 128 S.Ct. at 2317 (``It is foreseeable, and quite 
likely, that the time allowed for voluntary departure will expire long 
before the BIA issues a decision on a timely filed motion to reopen.'') 
(citing the proposed rule). In any event, an applicant for asylum is 
not an appropriate example to use to illustrate the choice faced by 
aliens granted voluntary departure but seeking discretionary relief 
through a post-order motion because the consequences for overstaying 
the period of voluntary departure do not preclude an alien from 
receiving asylum. Section 240B(d) bars an alien from obtaining future 
voluntary departure grants, adjustment of status under INA section 245, 
cancellation of removal, change of nonimmigrant status, and registry. 
Section 240B(d) does not make an alien ineligible for asylum, 
withholding of removal under section 241(b)(3), protection under 
Article 3 of the Convention Against Torture, or adjustment of status 
for asylees and refugees under INA section 209.
    The only other means by which aliens facing a choice between 
voluntary departure and filing a post-order motion might continue to 
benefit from voluntary departure and pursue a

[[Page 76931]]

motion to reopen would be the Supreme Court's suggestion that ``[a] 
more expeditious solution to the untenable conflict between the 
voluntary departure scheme and the motion to reopen might be to permit 
an alien who has departed the United States to pursue a motion to 
reopen postdeparture.'' Dada, 128 S.Ct. at 2320. The Board recently 
discussed many of these issues in Matter of Armendarez, supra. As the 
Board stated, ``the physical removal of an alien from the United States 
is a transformative event that fundamentally alters the alien's posture 
under the law.'' 24 I&N Dec. at 656. While aliens who voluntarily 
depart may not be considered ``physically removed'' through execution 
of a removal order, the controlling regulatory provisions and the force 
of the Board's statement apply equally in both situations. An alien's 
departure from the United States, even under a grant of voluntary 
departure, may trigger a new ground of inadmissibility under section 
212(a)(9)(B) or (C) of the Act (8 U.S.C. 1182(a)(9)(B), (C)). Under 
section 212(a)(9)(B)(i)(II), an alien is inadmissible for ten years 
from the date of departure (whether voluntary or removed) if he or she 
was unlawfully present in the United States for one year or more after 
April 1, 1997. Though this provision is inapplicable to several 
categories of aliens including, for example, minors and aliens who have 
filed a bona fide asylum application, many aliens will be subject to 
this ground of inadmissibility because of the period of unlawful 
presence they have already accrued. On the other hand, in order to be 
eligible for voluntary departure at the conclusion of proceedings, 
aliens must demonstrate that they have been ``physically present in the 
United States for a period of at least one year immediately preceding 
the alien's application for voluntary departure.'' INA 240B(b)(1) (8 
U.S.C. 1229c(b)(1)). While some aliens may be able to satisfy this 
physical presence requirement through the time within which an alien 
may have been lawfully in the United States, in many other cases the 
period of physical presence includes the amount of time an alien was 
not lawfully present. Many aliens who depart the United States due to 
being subject to a removal proceeding have accrued one year or more of 
unlawful presence and would be inadmissible under section 
212(a)(9)(B)(i)(II) of the Act if they depart and then seek admission 
to the United States. Similarly, under section 212(a)(9)(C)(i)(I), an 
alien who was unlawfully present in the United States for an aggregate 
period of more than 1 year, departs, and thereafter enters or attempts 
to enter the United States without being admitted is inadmissible.
    Further, waivers of inadmissibility under section 212(a)(9)(B) of 
the Act are limited to ``an immigrant'' who is the spouse, son, or 
daughter of a United States citizen or legal permanent resident and can 
show that this qualifying relative would suffer ``extreme hardship'' if 
his or her admission were denied. For aliens inadmissible under section 
212(a)(9)(C) of the Act, the alien must wait for ten years after the 
date of the alien's last departure before the alien may request that 
the Secretary of Homeland Security consent to an alien's reapplying for 
admission (with a narrow exception for aliens who have been battered or 
subjected to extreme cruelty).
    In addition, there are issues with respect to aliens who 
voluntarily departed, if the immigration judge or the Board thereafter 
grants the motion to reopen or reconsider after the alien has departed 
from the United States. One possibility is that the alien might seek to 
be paroled back into the United States to pursue the benefits of 
reopening, but the granting of parole is not within the authority of 
the immigration judges or the Board. Matter of Armendarez, supra at 
656-57, FN8 (recognizing that ``the Immigration Judges and the Board 
have been given no authority to compel the DHS to admit or parole such 
aliens into the United States''); Matter of Conceiro, 14 I&N Dec. 278 
(BIA 1973), aff'd, Conceiro v. Marks, 360 F.Supp 454 (S.D.N.Y. 1973). 
Instead, DHS determines whether to grant parole for ``urgent 
humanitarian reasons or significant public benefit'' pursuant to 
section 212(d)(5) of the Act, 8 U.S.C 1182(d)(5).
    With respect to aliens seeking adjustment of status, the same 
inadmissibility impediments discussed herein may exist since in 
general, in order to be eligible for adjustment, an alien must be 
``admissible to the United States.'' INA 245(a) (8 U.S.C. 1255(a)). 
Moreover, allowing an alien to pursue a motion to reopen from outside 
the United States in order to obtain adjustment of status is in clear 
tension with the purpose of adjustment of status, which is to provide a 
means for aliens to obtain lawful permanent resident status from within 
the United States without the need to depart in order to obtain an 
immigrant visa from a consular officer abroad. For aliens outside the 
United States, Congress has designed the immigration system such that 
aliens seeking admission as immigrants are to obtain an immigrant visa 
from a consular officer abroad.
    Further complicating matters is the fact that the alien would have 
departed voluntarily. This is significantly different than the 
situation where an alien is ordered removed, the removal order is 
executed, and a federal court of appeals later vacates the removal 
order. In the latter circumstance, if the court finds that the alien's 
removal was improper, the government may be required to return the 
alien to the United States. In the context of voluntary departure, 
there would be no improper voluntary departure that the government must 
rectify, since the alien departed after the issuance of the grant of 
voluntary departure as he or she had promised to do. In addition, 
unlike a federal court of appeals, EOIR does not have the authority to 
order the return of an alien upon the granting of a motion.
    The foregoing demonstrates the complex issues raised by allowing an 
alien granted voluntary departure, or any alien, the ability to pursue 
an administrative motion after departing the United States. While the 
Department is not foreclosing the idea of adopting such an approach in 
the future, it has concluded that the present rulemaking does not 
provide an adequate basis for addressing and resolving these issues and 
concerns at this time, particularly in the absence of an opportunity 
for public comment on such a proposal and how it might be implemented.
    This final rule does not adopt the proposed rule regarding 
forfeiture of the voluntary departure bond where an alien's voluntary 
departure is terminated upon the filing of a motion to reopen or 
reconsider. See section VI, infra, for further discussion.
    Finally, no comments were received regarding the separate provision 
in the proposed rule providing ``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.'' 72 FR at 67680. This rule explicitly declines 
to follow an interpretation that may have been reflected in prior court 
decisions to the effect that the Board's grant of reopening would have 
the effect of vacating the underlying voluntary departure order and the 
penalties attributable to the alien's voluntary failure to depart 
during the time allowed. This rule will be adopted in this final rule, 
without change.

[[Page 76932]]

IV. Termination of Voluntary Departure Upon the Filing of a Petition 
for Review

    Several commenters criticize the proposal to terminate voluntary 
departure upon the filing of a petition for review in a federal court 
of appeals, arguing that it is overreaching, beyond the scope of the 
Attorney General's authority, and would restrict access to judicial 
review. One of the commenters states that ``there is no role for EOIR 
to play in maintaining the uniformity of the courts of appeals' own 
procedures and practices,'' and the proposed rule ``takes discretion 
away from federal judges.''
    The proposed rule clearly sets forth the Attorney General's 
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.'' 
72 FR at 67678. In this context, the Attorney General is not 
``maintaining the uniformity of the courts of appeals' procedures and 
practices,'' or taking discretion away from federal judges. Rather, 
pursuant to section 240B(e) of the Act, the Attorney General is 
exercising his authority to limit eligibility for voluntary departure 
to ensure uniform application of the immigration laws.
    The Supreme Court's decision did not resolve the separate issue of 
whether the courts of appeals have the authority to grant a motion to 
stay the period allowed for voluntary departure pending a petition for 
judicial review with the court of appeals. See Dada, 128 S.Ct. at 2314; 
compare Thapa v. Gonzales, 460 F.3d 323, 329-32 (2d Cir. 2006) (holding 
that the court may stay voluntary departure pending consideration of a 
petition for review on the merits), and Obale v. Attorney General of 
United States, 453 F.3d 151, 155-57 (3d Cir. 2006) (same), with 
Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir. 2004) (holding that 
the court may not stay voluntary departure period pending consideration 
of a petition for review).
    The divergent practice among the federal courts of appeals 
undermines the sound public policy reasons to ``promote a greater 
measure of uniformity and expedition in the administration of the 
immigration laws.'' See 72 FR at 67678. As the Supreme Court stated in 
Dada, the voluntary departure statute ``contains no ambiguity: The 
period within which the alien may depart voluntarily `shall not be 
valid for a period exceeding 60 days.' '' Dada, 128 S.Ct. at 2316. Yet, 
an alien's ability to obtain a judicial stay in some circuits, but not 
others, provides certain aliens with a different rule than that 
recognized by the Supreme Court, that is, the ability to extend their 
voluntary departure periods well beyond 60 days. The grant of a stay of 
voluntary departure by a circuit court essentially tolls the voluntary 
departure period. Although not addressing voluntary departure in the 
circuit court context, the Supreme Court made clear that there is no 
statutory authority for tolling. Dada, at 2311, 2319; see also section 
240B(b)(2) of the Act (providing for no more than 60 days to 
voluntarily depart). A stay deprives the government of the same 
principal considerations of the voluntary departure period--``a quick 
departure without the considerable expense of protracted litigation.'' 
72 FR at 67681.
    The concern expressed by the Department in the proposed rule 
regarding the granting of judicial stays continues to be significant. 
72 FR at 67681-82. In practice, we have seen that those who seek 
judicial review do not adhere to the terms of the agreement and depart, 
despite the clear statutory authority for such aliens to continue to 
pursue judicial review even after they have departed from the United 
States. See Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 n.8-13 (9th 
Cir. 2006) (holding that permanent rules under the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996, Public Law 104-208, 
Div. C, 110 Stat. 3009 (Sept. 30, 1996), 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). Rather, aliens have sought to remain in the United States, which 
has resulted in this ``non-uniform, patchwork system of motions 
practice in the courts of appeals.'' 72 FR at 67681. Aliens granted 
stays are effectively allowed to remain in the United States for months 
and years after the statutorily required time to depart.
    While the Supreme Court did not consider the effect of judicial 
stays of voluntary departure in Dada because the issue was not 
presented for decision in that case, the Court's analysis regarding the 
time allowed to voluntarily depart supports the Department's position 
that the time for an alien to voluntarily depart should be limited to 
that allowed by statute. Dada, 128 S.Ct. at 2319 (recognizing that 
there is no statutory authority for tolling, and finding that ``the 
alien when selecting voluntary departure is [under] the obligation to 
arrange for departure, and actually depart, within the 60-day 
period''); 72 FR at 67682 (``This [automatic termination rule for 
petitions for review] 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.'').
    Because few aliens choose to use the authority granted by Congress 
to pursue judicial review after departing from the United States, and 
because the practice of granting stays has resulted in non-uniform 
application of the immigration laws, the Attorney General is exercising 
his statutory authority to limit eligibility for voluntary departure to 
those aliens who do not seek judicial review. Accordingly, this final 
rule adopts the automatic termination rule for an alien granted 
voluntary departure who files a petition for review in order to result 
in ``a uniform application of the effect of the voluntary departure 
period in all the circuit courts of appeals.'' 72 FR at 67682.
    However, in an effort to provide an incentive for aliens to depart 
during their voluntary departure periods and pursue judicial review 
from their home countries, the proposed rule sought 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.'' 72 FR at 
67682.
    One comment was submitted in response to this request. This comment 
suggests that the recommendation in the proposed rule regarding section 
212(a)(9)(A) of the Act be adopted. Based on this favorable comment, 
and further consideration by the Department, this final rule adopts new 
8 CFR 1240.26(i) to provide that if an alien who was granted voluntary 
departure files a petition for review any grant of voluntary departure 
shall terminate automatically upon the filing of the petition and the 
alternate order of removal shall immediately take effect, except that 
the alien will not be deemed to have departed under an order of removal 
if the alien (i) departs the United States no later than 30 days 
following the filing of a petition for review; (ii) provides to DHS 
such evidence of his or her departure as the ICE Field Office Director 
may require;

[[Page 76933]]

and (iii) provides evidence DHS deems sufficient that he or she remains 
outside of the United States.
    The voluntary departure statutory provision states that an order 
granting voluntary departure is entered ``in lieu of removal.'' INA 
240B(b)(1). It is by regulation, however, that the Attorney General 
requires immigration judges and the Board to enter an alternate order 
of removal upon granting voluntary departure. 8 CFR 1240.26(d). It is 
also by regulation that the Attorney General dictates when this 
alternate order of removal becomes effective. See e.g., 8 CFR 
1240.26(c)(3) (``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 addition, 
immigration judge and Board orders state that ``if the respondent fails 
* * * to depart when and as required, the privilege of voluntary 
departure shall be withdrawn without further notice or proceedings and 
the following orders shall thereupon become immediately effective.'' In 
the proposed rule, the Attorney General further proposed that if an 
alien's voluntary departure terminates due to the filing of a post-
order motion or petition for review, ``the alternate order of removal 
will take effect immediately.'' 72 FR at 67686. This final rule adopts 
an exception to the proposed rule. If an alien does depart and meets 
the conditions described above, the alien will not have departed under 
a removal order.
    In order for an alien to take advantage of this opportunity to 
avoid the stigma of departing under an order of removal, it will be 
necessary for the alien to establish a contemporaneous record 
documenting the alien's departure from the United States by notice to 
DHS documenting his or her departure and to establish that he or she 
remains outside of the United States. Evidence sufficient to meet these 
requirements may include proof of the alien's intended departure and 
itinerary, and prompt presentation by the alien along with such 
evidence necessary to prove his or her timely departure to a United 
States consulate. DHS may determine other acceptable proof documenting 
the alien's time of departure or define the timely period as meeting 
the definition of prompt presentation.
    A statement setting forth this rule will be added to the advisals 
regarding voluntary departure that are already included with Board 
decisions.
    Finally, this final rule does not adopt the provisions of the 
proposed rule regarding forfeiture of the voluntary departure bond 
where an alien's voluntary departure is automatically terminated upon 
the filing of a petition for review. See Section VI, infra for further 
discussion.

V. Notice to the Alien Under the Rule

    Several commenters state that the notice provisions set forth in 
the proposed rule are insufficient because they only provide notice of 
the consequences of accepting voluntary departure after an alien 
actually does accept voluntary departure. One commenter posits that the 
large majority of aliens who are unrepresented in immigration 
proceedings base their limited knowledge of penalties and obligations 
on the explanations given by immigration judges. In addition, this 
commenter suggests that the Board notify aliens when dismissing their 
appeals of aliens' right to file a petition for review in a federal 
court of appeals within 30 days. Another commenter states that the rule 
fails to include a requirement that the immigration judge notify aliens 
of their obligation to submit proof to the Board that the bond has been 
posted in order for the Board to reinstate their voluntary departure. 
This same commenter argues that the timeframe to submit this proof to 
the Board--``in connection with the filing of an appeal with the 
Board''--is ``unnecessarily restrictive.''
    The Department agrees that timely notice to aliens regarding their 
rights, responsibilities, and the consequences associated with 
voluntary departure is an important issue. This final rule retains the 
proposed changes to 8 CFR 1240.11 to provide that the immigration judge 
will advise an alien that voluntary departure will be automatically 
terminated if the alien files a motion to reopen or reconsider during 
the pendency of the period in which to depart; and for the Board to 
inform aliens that voluntary departure will be automatically terminated 
if the alien files a motion to reopen or petition for review during the 
pendency of the period in which to depart. In addition, this final rule 
also amends 8 CFR 1240.26 to require immigration judges to inform 
aliens of the bond amount that will be set before allowing the alien to 
accept voluntary departure, as well as any other conditions the 
immigration judge may set in granting voluntary departure. The alien 
will then have an opportunity to accept the grant of voluntary 
departure, upon the conditions set forth, or in the alternative the 
alien may decline the voluntary departure if he or she is unwilling to 
accept the amount of the bond or other conditions.
    Regarding the requirement to submit proof to the Board that the 
bond has been posted in order for the Board to reinstate voluntary 
departure, section 1240.26 is revised to require notice regarding the 
need to file proof of posting a bond with the Board in the immigration 
judge's decision, and the effect of failing to timely post the bond. 
Further, this rule revises the timeframe to submit this proof to the 
Board to ``within 30 days of filing of an appeal with the Board.'' 
After an immigration judge issues his or her decision, an alien has 
five business days to post the bond and thirty days to file an appeal 
with the Board. From the date the appeal is filed with the Board, the 
alien will have thirty days to submit proof to the Board that the bond 
was posted. Evidence that the bond was posted may include a copy of 
Form I-352, the Immigration Bond worksheet that will be provided to the 
obligor when the bond is posted with DHS Immigration and Customs 
Enforcement (ICE) Detention and Removal Office (DRO), or Form I-305, 
which is the fee receipt provided by DRO.
    The Department has also considered the suggestion that the Board 
notify aliens of their right to file a petition for review within 30 
days of the Board's dismissal of the alien's appeal. This advisal is 
beyond the scope of this rule, as it would require the Board to include 
such an advisal in every decision, not just those involving voluntary 
departure. However, such an advisal can be implemented administratively 
without the need for a regulation. The Board historically has not given 
such a notice, but the Department will give further consideration to 
the matter administratively.

VI. Issues Relating to the Voluntary Departure Bond

    Four commenters provided comments regarding the voluntary bond 
provisions included in the proposed rule. The proposed rule provided 
for the following unless the alien departs within the time permitted to 
depart, or is successful in reopening or overturning the final 
administrative order: (1) Aliens who are granted voluntary departure 
but fail to post the bond within the required five business days remain 
liable for the bond amount regardless of whether voluntary departure is 
later terminated due to the filing of a motion or petition for review; 
(2) aliens who are granted voluntary departure and post bond will 
forfeit the bond if voluntary departure is later terminated due to the 
filing of a motion or petition; (3) an alien's failure to post bond 
does not relieve the alien of the

[[Page 76934]]

obligation to depart and the alien will be subject to the consequences 
for failure to depart if the alien does not depart within the permitted 
period (reversing the Board's decision in Matter of Diaz-Ruacho, 24 I&N 
Dec. 47 (BIA 2006)); (4) an alien's failure to post bond within the 
required five business days may be considered in determining whether 
the alien is a flight risk and as a negative discretionary factor with 
respect to discretionary forms of relief; (5) aliens who waive their 
administrative appeal at the conclusion of proceedings and fail to post 
bond within the required five business days will become subject to the 
final order of removal after the fifth business day; and (6) in order 
to have voluntary departure reinstated by the Board on appeal, the 
alien must provide proof to the Board at the time of the appeal that 
the bond was posted.
    None of the comments took issue with the proposed rule that aliens 
who are granted voluntary departure and fail to post their bond remain 
liable for the bond. However, based on further discussion below, this 
final rule does not adopt the part of the proposed rule that imposed 
continuing liability for the bond ``regardless of whether voluntary 
departure is later terminated due to the filing of a motion or petition 
for review.'' Because issues relating to forfeiture of bond can be 
complex, and also implicate the authority of DHS as well as that of the 
immigration judge and the Board, the final rule does not include the 
provision that the alien will forfeit the bond if the alien's voluntary 
departure is later terminated upon the filing of a post-order motion or 
a petition for judicial review.
    Three of the commenters describe the proposed rules as unduly 
burdensome, unfair, and punitive. Two of them state that these rules 
should not be adopted because notice to the alien of these rules is 
insufficient. As discussed in section IV, part C, this final rule 
requires that notice of the consequences of failing to depart 
voluntarily, the consequences of filing a post-decision motion, the 
amount of bond and any other conditions the immigration judge intends 
to impose, all be provided to aliens at the time they request voluntary 
departure.
    One commenter posits that the rules appear to regulate enforcement 
related issues that are within the purview of DHS, not EOIR, because 
they involve bond and monetary penalties. This commenter, as well as 
one other, objects to the rules proposing forfeiture of the bond where 
voluntary departure is later terminated and the alien is no longer 
under an obligation to voluntarily depart. This commenter describes 
this rule as a due process violation precisely because the alien is no 
longer under an obligation to depart, and because in some cases the 
alien may be prevented from departing because he or she is detained 
pending execution of the removal order.
    Pursuant to section 103(g)(2) of the Act, the Attorney General has 
the authority to ``establish such regulations, prescribe such forms of 
bond * * * and perform such other acts as the Attorney General 
determines to be necessary for carrying out this section.'' Further, 
section 240B(b)(3) of the Act states that the bond amount will ``be 
surrendered upon proof that the alien has departed the United States 
within the time specified,'' and does not, by its terms, provide 
exceptions for the circumstances of an alien who later decides that he 
or she does not wish to depart within the time specified. As explained 
in the proposed rule, ``the purpose of the bond [is] 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.'' 72 FR 67683. The Department considers the bond akin to 
earnest money provided by the alien at the time the voluntary departure 
contract is entered. By posting the bond, the alien is manifesting the 
intent to follow through with the bargain under which he or she intends 
to depart the United States within the specific time period allotted at 
no cost to the government. While the alien may later change his or her 
mind, this does not extinguish the initial promise and the government's 
reliance on that promise.
    On the other hand, the Department recognizes that issues relating 
to forfeiture of bond also implicate the authority of DHS. Public 
comments stated that aliens should not be penalized for filing a post-
order motion or a petition for review. The Department has also 
considered the language of the Supreme Court's decision in Dada (``the 
alien who withdraws from a voluntary departure arrangement is in the 
same position as an alien who was not granted voluntary departure in 
the first instance''), Id. at 2320 (emphasis added), though it is worth 
noting that the Court's observation there was in the context of the 
option for withdrawal of a request for voluntary departure, an option 
that the Department has chosen not to follow in this final rule.
    In light of the foregoing considerations, this final rule does not 
include the bond forfeiture rule previously proposed. Because this 
final rule is not adopting the changes regarding forfeiture of the 
bond, there is no need to adopt the provisions for a refund of the bond 
upon proof of being physically outside the country. These are issues 
that DHS will be able to address in carrying out its responsibilities 
relating to the posting and surrender of bonds.
    However, this final rule adopts, in part, the proposed rule 
regarding the circumstances under which an alien can obtain a refund of 
the bond amount where the final administrative order is overturned or 
remanded. This rule allows for refund of the bond where an alien is 
granted voluntary departure by an immigration judge, posts the 
voluntary departure bond within the time required, appeals the 
immigration judge's decision to the Board, and obtains reversal or 
remand of the immigration judge's decision regarding the order of 
removal. If, pursuant to the Board's decision, the alien is no longer 
removable then the alien should obtain a refund of his or her bond. In 
that situation, the grant of voluntary departure did not take effect 
since the immigration judge's decision is stayed upon the filing of an 
appeal to the Board, and the Board's decision overturning or remanding 
the immigration judge's decision on the merits thereby renders issues 
relating to voluntary departure moot. Likewise, if, pursuant to a 
remand by the Board, the alien is not currently subject to an order of 
removal, the alien should obtain a refund of the bond amount.
    Lastly, this commenter states that DHS should provide the Board 
with information regarding whether the alien actually posted bond, and 
that 30 days to provide this information to the Board is a restrictive 
amount of time. The commenter provides the example of a detained alien 
whose family member may have posted the bond. In this case, the 
commenter argues, the 30 days may not be enough time for the alien to 
gather the information needed regarding bond and provide it to the 
Board.
    In light of the comments, the Department is revising this rule to 
allow an alien to provide proof to the Board of having posted the bond 
within 30 days of the filing of the Notice of Appeal. As for requiring 
DHS to provide the information, such a process would assume that every 
alien granted voluntary departure by the immigration judge would 
request reinstatement by the Board. Further, it is the alien's burden 
to demonstrate to the Board continuing eligibility for voluntary 
departure. See 8 CFR 1240.11(d); 72 FR 67685 (``the burden of proof is 
on the alien to establish eligibility for a discretionary form of 
relief'') (internal

[[Page 76935]]

citations omitted). Thus, it would be inappropriate to require DHS to 
be responsible for providing this information relating to the posting 
of the bond by the alien, as the alien had agreed to do.
    Another commenter opposes the flight risk and negative discretion 
factors. This commenter argues that this categorical approach ignores 
individual circumstances and creates penalties for the small fraction 
of aliens who only qualify for voluntary departure due to their strong 
equities and characteristics in the first place. This rule does not 
mandate that aliens who do not post their voluntary departure bonds are 
flight risks or that they should be denied relief in the exercise of 
discretion. Rather, this rule provides guidance to adjudicators 
regarding particular factors they may consider in exercising 
discretion.
    For instance, an alien's failure to post the bond ``may be 
considered'' a negative discretionary factor with regard to relief. 72 
FR 67684, 67686. Specific inclusion of these potentially adverse 
factors in the voluntary departure regulations is appropriate to 
encourage aliens to adhere to the bond requirement within the required 
five business days, as they had specifically promised to do. If a rule 
carries no consequence for failure to comply, then the rule may be 
rendered effectively meaningless. The proposed rule that an alien's 
voluntary departure is terminated upon failure to post bond where the 
alien waived administrative appeal serves the same purpose. 72 FR 67684 
(stating that ``this proposal ensures that aliens who waive appeal 
before the immigration judge still have an incentive to post bond as 
they agreed to do.''). Accordingly, the Department adopts without 
change the provisions of the proposed rule regarding the adverse 
factors for failure to post bond and termination of voluntary departure 
for failure to post bond by an alien who waives administrative appeal.
    One commenter objects to the proposed rule changing the result in 
Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006). As noted in the 
proposed rule, the result in Diaz-Ruacho is not a sound policy approach 
because the alien's default should not exempt the alien from the 
penalties for failure to depart. 72 FR 67684. Moreover, the commenter 
does not state how the practical concerns of retaining Diaz-Ruacho 
might be avoided if Diaz-Ruacho were retained. See Id. (``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'').
    The approach set forth in this final rule recognizes that aliens 
who request voluntary departure and enter into this agreement with the 
government may not simply back out of the agreement because they later 
realize that they actually have to depart or be subject to the 
consequences of failing to voluntarily depart. This rule is designed to 
address the conflict recognized in Dada for aliens whose circumstances 
have changed and want to pursue a motion to reopen, or who believe 
error exists in the administrative decision and want to pursue a motion 
to reconsider but cannot do so if they comply with the voluntary 
departure order. As for those aliens who file petitions for review, 
this rule is also designed to prevent the voluntary departure period 
from being extended beyond the statutorily permitted amount of time by 
the issuance of a judicial stay. Neither of these intended purposes of 
the rule allows for an alien unilaterally to change his or her mind 
after having been granted voluntary departure; which is what would 
occur if an alien's failure to post bond merely resulted in vitiating 
the original grant of voluntary departure.
    None of the comments specifically object to the rule that an alien 
who waives appeal at the conclusion of proceedings and fails to post 
bond within the required five business days will immediately become 
subject to the final order of removal. The proposed rule also stated, 
however, that ``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.'' 72 FR at 67684. This 
final rule adopts this provision. However, in order to maintain 
consistency between this provision and the similar provision being 
adopted for the filing of petitions for review, this final rule revises 
the regulatory language to read: ``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), except that an alien granted the privilege of voluntary 
departure under 8 CFR 1240.26(c) will not be deemed to have departed 
under an order of removal if the alien: (i) Departs the United States 
no later than 25 days following the failure to post bond; (ii) provides 
to DHS such evidence of his or her departure as the ICE Field Office 
Director may require; and (iii) provides evidence DHS deems sufficient 
that he or she remains outside of the United States.''
    As explained above in the context of petitions for review, in order 
for an alien to take advantage of this opportunity to avoid the stigma 
of departing under an order of removal, it will be necessary for the 
alien to establish a contemporaneous record documenting the alien's 
departure from the United States by notice to DHS documenting his or 
her departure and to establish that he or she remains outside of the 
United States. Evidence sufficient to meet these requirements may 
include proof of the alien's intended departure and itinerary, and 
prompt presentation by the alien to a United States consulate along 
with such evidence necessary to prove his or her timely departure. DHS 
may determine other acceptable proof documenting the alien's time of 
departure or define the timely period as meeting the definition of 
prompt presentation.
    Finally, one commenter asks whether the filing of a motion would 
terminate the voluntary departure bond. As explained earlier, issues 
relating to the cancellation of bond implicate the authority of DHS. 
Thus, the Department is not in a position to unilaterally respond to 
this comment in this rulemaking. However, the Department has consulted 
with DHS regarding this question and DHS is considering the appropriate 
way to respond and provide guidance for this and similar bond 
questions.
    In addition, this commenter states that the bond should be raised 
to $5,000 because $500 is not enough leverage to ensure departure. 
Under the regulations, the specific bond amount is within the 
discretion of the immigration judge, to be set ``in an amount necessary 
to ensure that the alien departs within the time specified,'' except 
that it can be no less than $500. 8 CFR 1240.26(c)(3). The Department 
did not include an increase in the minimum bond amount in the proposed 
rule, and declines at this time to impose such a change by regulation. 
However, as explained in the previous discussion, this rule uses other 
means to implement the requirement that the bond set by the immigration 
judge is posted.
    The proposed rule also sought comment on whether the rule should 
provide for additional sanctions for aliens who fail to post the 
required bond. 72 FR 67684. One commenter urged the Department to table 
consideration of such a provision because it would be punitive and hurt

[[Page 76936]]

individuals who would be least able to carry the additional financial 
burden. The Department is not adopting further changes in this final 
rule regarding posting of the bond. However, this issue may be 
revisited in the future, if necessary to address additional concerns.

VII. Amount of the Monetary Penalty for Failure To Depart Voluntarily

    Two commenters object to the proposed rule to set a minimum $3,000 
civil penalty for failure to depart pursuant to section 240B(d)(1)(A) 
of the Act. One of the commenters argues that if Congress had intended 
the minimum penalty to be $3,000, it would not have specifically set 
the minimum at $1,000. The commenter also states that immigration 
judges should have discretion to set the amount anywhere between the 
statutory range of $1,000 and $5,000. Finally, this commenter argues 
that it does not make sense to have the immigration judge set the 
penalty when factors relevant to overstaying the voluntary departure 
period in order to determine an appropriate fine would only arise 
during the voluntary departure period.
    Congress has provided that failure to depart is subject to a civil 
penalty. Through this regulation, the Department is using the 
consequences provided by Congress to further encourage aliens to adhere 
to their voluntary departure orders. As stated in the proposed rule, 
the Department does not have authority to enforce or collect the 
penalty, but this rule deals only with the authority to set the amount 
of the penalty. 72 FR at 67685. There is nothing in the statute that 
precludes having the immigration judge set the penalty in advance prior 
to the granting of voluntary departure. Moreover, nothing in this rule 
precludes DHS from adopting a process that allows for mitigation of the 
amount of a civil penalty that it seeks to collect based on the 
particular circumstances of an alien's case. Finally, there is much to 
be said for providing the additional clarity for the alien, up front, 
in deciding whether to accept voluntary departure and in choosing 
ultimately to comply with the obligation to depart voluntarily, rather 
than facing an uncertain and unknowable penalty amount to be selected 
in the future within a broad monetary range.
    The final rule does make one change to allow greater flexibility 
regarding the amount of the monetary penalty, within the allowable 
statutory range. Rather than setting a minimum amount of $3,000 as the 
civil penalty, the final rule will set a rebuttable presumption that 
the civil penalty amount should be $3,000. The immigration judge will 
have discretion to set a lower or higher amount based on an alien's 
individual circumstances, including a consideration of the likelihood 
that the alien will comply or fail to comply with the grant of 
voluntary departure. The final rule will adopt, without change, the 
proposed rule that failure to pay a required civil penalty may be a 
relevant discretionary factor in later applications for relief.

VIII. Effective Date

    One commenter argues that the final rule regarding motions should 
apply retroactively to persons granted voluntary departure before the 
effective date of the rule. Because the Department did not present such 
retroactive application as an option in the proposed rule, and because 
aliens would not otherwise receive notice that the filing of their 
motions would automatically terminate their voluntary departure, the 
Department will not apply this rule retroactively.
    Since the provisions of this rule are prospective only, this rule 
does not provide transition rules with respect to aliens who were 
granted voluntary departure and had motions pending before an 
immigration judge or the Board or a petition for review pending with a 
federal court of appeals on or after the date of the Supreme Court's 
decision in Dada, and before the effective date of this final rule. It 
is worth noting that an alien who was within a period of voluntary 
departure on the day Dada was issued could have relied on that decision 
to withdraw from the request of voluntary departure in order to pursue 
a motion without being subject to the consequences for failing to 
voluntarily depart.
    There are no other reasons to apply this rule retroactively. 
Accordingly, the proposed rule to apply this final rule prospectively 
only will be adopted without change. This means that this rule will 
apply to all cases pending before EOIR, or adjudicated by EOIR, on the 
effective date of this rule and any cases that later come before it. 
For instance, an alien who receives a decision by an immigration judge 
granting voluntary departure on or after the effective date of this 
rule will be subject to the voluntary departure bond provisions of this 
rule as well as all other applicable provisions. An alien who receives 
a decision by the Board reinstating voluntary departure on or after the 
day of the effective date of this rule will be subject to the automatic 
termination rule if that alien decides to seek judicial review, as well 
as all other application provisions. Likewise, if an alien's case is 
pending before a circuit court, and the case is remanded to the Board 
on or after the day of the effective date of this rule, any subsequent 
grant of voluntary departure will be subject to this rule.

IX. 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

[[Page 76937]]

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.


0
Accordingly, for the reasons stated in the preamble, chapter V of title 
8 of the Code of Federal Regulations is amended as follows:

PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES

0
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.


0
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.
* * * * *

0
3. Section 1240.26 is amended by:
0
a. Adding new paragraphs (b)(3)(iii) and (b)(3)(iv);
0
b. Revising paragraph (c)(3);
0
c. Adding new paragraphs (c)(4), (e)(1), and (e)(2);
0
d. Adding a new sentence at the end of paragraph (f); and by
0
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. Upon 
the granting of 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 
conditions set forth in this paragraph (c)(3)(i)-(iii). If the 
immigration judge imposes conditions beyond those specifically 
enumerated below, the immigration judge shall advise the alien of such 
conditions before granting voluntary departure. Upon the conditions 
being set forth, the alien shall be provided the opportunity to accept 
the grant of voluntary departure or decline voluntary departure if he 
or she is unwilling to accept the amount of the bond or other 
conditions. 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. Before granting voluntary 
departure, the immigration judge shall advise the alien of the specific 
amount of the bond to be set and the duty to post the bond with the ICE 
Field Office Director within 5 business days of the immigration judge's 
order granting voluntary departure.
    (ii) An alien who has been granted voluntary departure shall, 
within 30 days of filing of an appeal with the Board, submit sufficient 
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 
reinstate the period of voluntary departure in its final order.
    (iii) Upon granting voluntary departure, the immigration judge 
shall advise the alien that 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.
    (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, 
the alien may apply to the ICE Field Office Director for the bond to be 
canceled, upon submission of proof of the alien's timely departure by 
such methods as the ICE Field Office Director may prescribe.
    (vi) 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 or remanding the immigration 
judge's decision regarding removability.
    (4) Provisions relating to bond. 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

[[Page 76938]]

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), except that an alien granted the privilege of voluntary 
departure under 8 CFR 1240.26(c) will not be deemed to have departed 
under an order of removal if the alien:
    (i) Departs the United States no later than 25 days following the 
failure to post bond;
    (ii) Provides to DHS such evidence of his or her departure as the 
ICE Field Office Director may require; and
    (iii) Provides evidence DHS deems sufficient that he or she remains 
outside of the United States.
* * * * *
    (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. 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. The Board shall advise the alien of the 
condition provided in this paragraph in writing if it reinstates the 
immigration judge's grant of voluntary departure.
    (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 does not 
toll, stay, or extend the period allowed for voluntary departure. The 
filing of a petition for review has the effect of automatically 
terminating the grant of voluntary departure, and accordingly also 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 challenge and the alternate order of removal entered pursuant 
to paragraph (d) of this section shall immediately take effect, except 
that an alien granted the privilege of voluntary departure under 8 CFR 
1240.26(c) will not be deemed to have departed under an order of 
removal if the alien departs the United States no later than 30 days 
following the filing of a petition for review, provides to DHS such 
evidence of his or her departure as the ICE Field Office Director may 
require, and provides evidence DHS deems sufficient that he or she 
remains outside of the United States. The Board shall advise the alien 
of the condition provided in this paragraph in writing if it reinstates 
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. There shall be a rebuttable 
presumption that 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 or lower amount at the 
time of granting voluntary departure within the permissible range 
allowed by law. 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

0
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).


0
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, or upon the failure to post a required 
voluntary departure bond within 5 business days. 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: December 12, 2008.
Michael B. Mukasey,
Attorney General.
[FR Doc. E8-30025 Filed 12-17-08; 8:45 am]
BILLING CODE 4410-30-P



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