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,[483] adjustment of status,[484] registry,[485] 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.  The only[486] exception to this is if the noncitizen is applying for cancellation or adjustment of status under the Violence Against Women Act.[487]  An Immigration Judge may also use failure to depart as a negative discretionary factor in denial of other forms of relief.[488]

[483] See § § 3.3-3.6, supra.

[484] See § 3.2, supra.

[485] See § 3.33, supra.

[486] 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).

[487] 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)).

[488] 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).

RELIEF - VOLUNTARY DEPARTURE
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).

Sixth Circuit

OVERVIEW " JURISDICTION
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).

VOLUNTARY DEPARTURE " FILING PETITION FOR REVIEW
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).