Criminal Defense of Immigrants


§ 15.33 d. After Removal Proceedings

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All grants of voluntary departure are issued with alternate orders of removal should the noncitizen fail to depart within the voluntary departure period granted by the Immigration Judge.  If the noncitizen fails to depart within the voluntary departure period, the noncitizen will be subject to a civil penalty of not less than $1,000 and not more than $5,000, and will be barred from making any applications for cancellation of removal,[323] adjustment of status,[324] registry,[325] or a change of nonimmigrant status under INA § 248.  As soon as the noncitizen who failed to depart on time does depart the United States, s/he also becomes subject to the bars and criminal penalties applicable to a noncitizen who attempts to re-enter the United States after an order of removal.[326] The only exception to this is if the noncitizen is applying for cancellation or adjustment of status under the Violence Against Women Act.[327]  An Immigration Judge may also use failure to depart as a negative discretionary factor in denial of other forms of relief.[328]


The BIA has held that filing a motion to reopen or reconsider before the Immigration Judge does not stay a voluntary departure period.[329]  At least three circuits have overruled the BIA on this matter.[330]  The granting of a motion to reopen vacates the previous voluntary departure order.[331]

Filing a notice of appeal or motion to reconsider denial of an appeal with the Board of Immigration Appeals stays a period of post-conclusion voluntary departure.[332]  If the Board of Immigration Appeals denies the appeal, the Board may grant an extension of the voluntary departure period, but in no case will the voluntary departure period exceed 60 days.  Therefore, a notice of appeal filed on the 30th day will result in an extension of no more than an additional 30 days.[333]  Unless the BIA has specific reasons to do otherwise, it will not reduce the period of voluntary departure granted by the Immigration Judge.[334]


The effect of filing a petition for review in a federal circuit court of appeals is a complicated issue.[335]  The majority of circuits have found jurisdiction to stay a period of voluntary departure when specifically requested by the noncitizen.[336]  The Sixth, Eighth, Ninth Circuits have held that filing a petition for review and stay of removal automatically stays whatever portion of the voluntary departure period has not already expired.[337]  The majority of circuits to address the issue disagree.[338]  Other circuits have declined to extend these cases to a situation where the voluntary departure period has expired.[339]  As there is no judicial review available of denial of voluntary departure,[340] several circuits have held, applying post-IIRAIRA permanent rules, that they lack jurisdiction independently to grant or extend any period of voluntary departure.[341]


[323] See § § 24.3-24.6, supra.

[324] See § 24.2, supra.

[325] See § 24.23, supra.

[326] See § 15.39, supra.

[327] Violence Against Women and Department of Justice Reauthorization Act of 2005, § 812, Pub. L. No. 109-162, 119 Stat. 2960 (Jan. 5, 2006) (amending INA § 240B(d), 8 U.S.C. § 1229c(d)).

[328] Jarad v. Gonzales, 461 F.3d 867 (7th Cir. Aug. 24, 2006) (Immigration Judge did not commit legal error in making discretionary decision to deny INA § 245(i) adjustment to noncitizen who failed to depart following deportation proceedings 13 years earlier).

[329] See Matter of Shaar, 21 I. & N. Dec. 541 (BIA 1996).

[330] Kanivets v. Gonzales, 424 F.3d 330 (3d Cir. Sept. 7, 2005) (time allotted for voluntary departure is tolled pending ruling on a timely motion for rehearing before the BIA); Sidikhouya v. Gonzales, 407 F.3d 950 (8th Cir. May 17, 2005) (same); Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. Jan. 18, 2005) (timely motion to reopen, along with request for stay of removal, filed with BIA prior to expiration of voluntary departure period tolls voluntary departure period until the BIA issues its decision on the motion to reopen); Shaar v. INS, 141 F.3d 953, 956 (9th Cir. 1998) is inapposite, since it dealt a prior version of the law).

[331] See Orichitch v. Gonzales, 421 F.3d 595 (7th Cir. Aug. 31, 2005) (decision to reopen removal proceedings serves to vacate preexisting voluntary departure order).

[332] See, e.g., Barroso v. Gonzales, 429 F.3d 1195 (9th Cir. Nov. 18, 2005) (motion to reconsider is timely filed before voluntary departure period has expired, voluntary departure period is automatically tolled while awaiting a decision from the Board of Immigration Appeals on his motion).

[333] See 8 C.F.R. § 240.26(h); Matter of Chouliaris, 16 I. & N. Dec. 169 (BIA 1977).

[334] Matter of AM, 23 I. & N. Dec. 737 (BIA 2005), modifying Matter of Chouliaris, 16 I. & N. Dec. 168 (BIA 1977).

[335] An October 25, 2005 AILF practice advisory on this issue, “Practice Advisory, Protecting Voluntary Departure Period During Court of Appeals Review” is at:

[336] Thapa v. Gonzales, 460 F.3d 323 (2d Cir. Aug. 16, 2006); Obale v. Att’y Gen. of the US, 453 F.3d 151 (3d Cir. Jun. 22, 2006); Bocova v. Gonzales, 412 F.3d 257, 265 (1st Cir. 2005); Lopez-Chavez v. Ashcroft, 383 F.3d 650 (7th Cir. Sept. 9, 2004); Nwakanma v. Ashcroft, 352 F.3d 325 (6th Cir. 2003); El Himri v. Aschcroft, 344 F.3d 1261, 1262 (9th Cir. 2003).  But see Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir. 2004) (holding that voluntary departure may not be stayed).

[337] Macotaj v. Gonzales, 424 F.3d 464 (6th Cir. Aug. 19, 2005) (if the standard to stay removal is satisfied, the standard to stay voluntary departure is also); Desta v. Ashcroft, 365 F.3d 741, 743 (9th Cir. 2004); Rife v. Ashcroft, 374 F.3d 606, 614-15 (8th Cir. 2004).  But see Elian v. Ashcroft, 370 F.3d 897 (9th Cir. June 2, 2004) (El Himri not applicable to transitional rules cases).

[338] Iouri v. Ashcroft, 464 F.3d 172 (2d Cir. Sept. 11, 2006); Banda Ortiz v. Gonzalez, 445 F.3d 387 (5th Cir. Mar. 28, 2006) (grant of a motion to reopen does not automatically stay a period of voluntary departure; noncitizen must additionally request stay or reinstatement of voluntary departure period); Bocova v. Gonzales, 412 F.3d 257 (1st Cir. June 24, 2005) (in order to suspend the running of an unexpired period of voluntary departure, noncitizen must explicitly request the stay before the voluntary departure period expires); Alimi v. Ashcroft, 391 F.3d 888 (7th Cir. Dec. 10, 2004) (same); Ngarurih v. Ashcroft, 371 F.3d 182 (4th Cir. 2004) (no jurisdiction exists to stay period of voluntary departure).

[339] Onikoyi v. Gonzales, 454 F.3d 1 (1st Cir. Jun. 16, 2006) (no jurisdiction to reinstate voluntary departure period after it has already expired); Sviridov v. Ashcroft, 358 F.3d 722 (10th Cir. Feb. 10, 2004); Obleschenko v. Ashcroft, 374 F.3d 654 (8th Cir. Jul. 8, 2004).

[340] INA § 240B(f), 8 U.S.C. § 1229c(f).

[341] Bocova v. Gonzales, 412 F.3d 257 (1st Cir. June 24, 2005); Mullai v. Ashcroft, 385 F.3d 635, 639-40 (6th Cir. 2004); Rife v. Ashcroft, 374 F.3d 606, 614 (8th Cir. 2004); Ngarurih v. Ashcroft, 371 F.3d 182, 192-93 (4th Cir. 2004); Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 280-81 (3d Cir. 2004) (circuit court lacks jurisdiction to reinstate Immigration Judge’s grant of voluntary departure and extend petitioner’s date for departure); Sviridov v. Ashcroft, 358 F.3d 722, 731 (10th Cir. 2004); Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1174 (9th Cir. 2003).



Dada v. Mukasey, ___ U.S. ___, 128 S.Ct. 2307 (2008) (filing a motion to reopen does not toll a period of voluntary departure, however, noncitizen should be provided with opportunity, prior to expiration).

Note: The 3d, 8th, 9th, and 11th Circuits had previously found that the filing of a motion to reopen automatically tolls the voluntary departure period, while the 1st, 4th and 5th Circuits had rejected the tolling arguments. The BIA also refused to toll the voluntary departure period. Matter of Shaar, 20 21 I&N Dec. 541 (BIA 1996).


Matter of Bozena Zmijewska, 24 I. & N. Dec. 87 (BIA 2007) (BIA lacks authority to apply an "exceptional circumstances" or other general equitable exception to the penalty provisions for failure to depart within the time period afforded for voluntary departure under INA 240B(d)(1), 8 U.S.C.A. 1229c(d)(1); noncitizen has not voluntarily failed to depart the United States under INA 240B(d)(1) when the person, through no fault of his or her own, was unaware of the voluntary departure order or was physically unable to depart within the time granted).

Sixth Circuit

Casillas v. Holder, 656 F.3d 273 (6th Cir. Sept. 2, 2011) (court lacks jurisdiction to review enforcement of a removal order that was entered in 1996, but was not enforced until 2009).
Hachem v. Holder, 656 F.3d 430 (6th Cir. Aug. 29, 2011) (automatic termination of voluntary departure under 8 C.F.R. 1240.26(i) is valid exercise of AG discretion).