U.S. IMMIGRATION: VOLUNTARY DEPARTURE UNDER THE NEW LAW (Law Offices of Carl Shusterman)

Law Offices of Carl Shusterman - US Immigration

VOLUNTARY DEPARTURE
UNDER THE NEW LAW

Law Offices of Carl Shusterman
600 Wilshire Boulevard, Suite 1550, Los Angeles, CA 90017
(213) 623-4592 x0
Representing Clients in All 50 States
30 Years of Immigration Law Experience
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The new immigration law signed by President Clinton makes some very significant changes in the rights of a person in deportation or exclusion proceedings. As of April 1, 1997, these types of hearings will be combined into one and renamed a "removal" hearing. This article discusses the availability of voluntary departure for a person in a removal proceeding.

At the Conclusion of the Hearing

The new law provides that at the conclusion of a removal hearing, an Immigration Judge may grant a person no more than 60 days of voluntary departure. Presently, it is common for judges to grant up to six months or more of voluntary departure in a deportation proceeding.

Long periods of voluntary departure are often used by judges and INS Trial Attorneys as a way to persuade a person who has a weak case for asylum or suspension of deportation to withdraw their applications and agree to leave the U.S. voluntarily. Many times, a person is seeking to extend their stay in the U.S. in order to qualify for a future benefit. For example, imagine that the person under deportation proceedings is the spouse of a permanent resident. A petition filed by the permanent resident spouse will take almost four years to ripen into a green card. However, if the permanent resident spouse naturalizes, the person qualifies as an "immediate relative" who may adjust status to permanent resident before an Immigration Judge.

A person in this position may contest deportability or pursue a form of relief from deportation in order to "buy time". In order to avoid unnecessary litigation, wise Immigration Judges frequently will grant such persons an appropriate period of voluntary departure.

Ironically, the same law which elevates both the status and salaries of Immigration Judges, severely limits their discretionary authority by restricting the period of time for which they may grant voluntary departure. However, judges who wish to grant a person additional time may circumvent this restriction simply by postponing the date of the person's removal hearing.

Under current law, a person found to be excludable (as opposed to deportable) is not eligible for voluntary departure. The new law, by allowing them to obtain voluntary departure, confers a new right on them. A person charged with being excludable is usually someone who is stopped at an airport or land border and questioned about their admissibility to the U.S. Currently, they are not considered to have "entered" the U.S.

Mandatory Bond

The new law also provides that when an Immigration Judge grants a person voluntary departure, the person must post a bond with the government to insure that they will depart within the period granted by the judge.

The implementation of this section of law should prove interesting. Presently, while some persons who appear before judges are in custody or have posted bond, the large majority of persons are not required to post bonds. Such bonds which are posted are done so with INS, not with the Immigration Courts (which are part of a different agency than INS).

Imagine a person undergoing a removal hearing after April 1, 1997. Imagine that he has agreed to withdraw his Request for Asylum in exchange for a grant of 60 days of voluntary departure. Unless he is already under bond, the new law requires that he post a new bond on the spot.

How would this work? Would INS set the bond amount? Would there be an immediate hearing before the Immigration Judge to determine or review the amount of the bond? If the person is not carrying enough cash (INS does not presently accept bond payments by check or credit card.) to post bond on the spot, would he be arrested and imprisoned? If so, where would INS detain the thousands of persons who might find themselves in this position?

Regulations to be issued by INS and the Immigration Courts will have to spell out how this procedure would operate.

Prior to Completion of Hearing

The new law also provides that voluntary departure may be granted for up to 120 days in lieu of, or prior to the conclusion of, a removal proceeding. For persons who elect this option, the posting of a voluntary departure bond is optional.

Given the longer period of voluntary departure (120 days as opposed to 60 days) and the optional nature of the bond requirement, most persons who desire voluntary departure will no doubt opt to make such a deal with the INS Trial Attorney. Few persons would chose to complete the hearing, request voluntary departure and risk being taken into custody.

Again, details as to who will be eligible for such treatment will be left up to the INS and the Immigration Courts. How will the two agencies share responsibility? Will there be any mechanism by which a person may obtain further extension of their period of voluntary departure under extraordinary circumstances? Perhaps a bond might be required in these instances.

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