Interim Decision #3429
In re Francisco OCAMPO-Ugalde, Respondent
File A76 376 387 - Los Angeles
Decided March 24, 2000
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Voluntary departure may not be granted prior to the completion of removal proceedings
without an express waiver of the right to appeal by the alien or the alien’s representative.
Pro se
Before: Board Panel: FILPPU, MATHON, and MOSCATO, Board Members.
FILPPU, Board Member:
In a decision rendered February 12, 1998, the Immigration Judge found
the respondent removable as charged and granted him voluntary departure.
The respondent has appealed that decision. The appeal will be sustained,
and the record will be remanded to the Immigration Judge for further proceedings.
I. BACKGROUND
The respondent, a native and citizen of Mexico, entered the United
States without inspection on or about June 1, 1985. On November 21, 1997,
the Immigration and Naturalization Service issued a Notice to Appear
(Form I-862), commencing these removal proceedings.
The respondent appeared with counsel before the Immigration Judge at
a master calendar hearing on January 13, 1998. At that hearing, counsel
conceded removability and requested a continuance in order to review the
respondent’s eligibility for relief. Counsel also indicated that the respondent
would seek only voluntary departure and would withdraw the pending
application that he had previously filed.
On February 12, 1998, the respondent again appeared before the
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Immigration Judge. Counsel stated that he had reviewed with the respondent the options available to him and that the respondent would seek only
voluntary departure. After establishing the respondent’s eligibility for this
form of relief, including the fact that he had not been convicted of any
crimes, the Immigration Judge granted him a period of 120 days’ voluntary
departure, without opposition from the Service. The Immigration Judge
informed the respondent that this was the maximum period of departure
time allowed.
The Immigration Judge then concluded proceedings by serving a copy
of the written order on the parties. The Immigration Judge’s written order
indicates that the respondent was granted 120 days’ voluntary departure,
that his other pending application was withdrawn, that the parties had
waived appeal, and that no further bond would be required.
On March 13, 1998, the respondent filed a timely appeal in which he
alleged that the Immigration Judge abused her discretion by denying his
“application for relief.” In a lengthy appellate brief, the respondent argues
that he is eligible for cancellation of removal and asks the Board to overturn
the Immigration Judge’s denial of his application for that form of relief. The
Service has not responded to the appeal.
II. ISSUE
The issue in this case is whether voluntary departure may be granted
prior to the completion of removal proceedings without an express waiver
of the right to appeal by the alien or the alien’s representative.
III. JURISDICTION
Before we consider the respondent’s arguments in support of his
appeal, we must determine whether his appeal is properly before us.
Because the respondent was granted relief that is conditioned on a waiver
of the right to appeal, we must ascertain whether such a waiver occurred.
A. Types of Voluntary Departure
In removal proceedings, an Immigration Judge may grant voluntary
departure either at the master calendar stage of proceedings or at their completion. 8 C.F.R. § 240.26 (1999). The Immigration Judge may also grant
voluntary departure at any time prior to the completion of proceedings if the
Service stipulates to a grant.
8 C.F.R. § 240.26(b)(2).
There is a distinct difference between the form of voluntary departure
available at the outset of proceedings and that available at their conclusion.
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See Matter of Arguelles, 22 I&N Dec. 811 (BIA 1999). When voluntary
departure is sought at the outset of proceedings, the standards for eligibility are less demanding and the posting of a bond is not required. See
8 C.F.R.
§§ 240.26(b)(1), (b)(3), (c)(1), (c)(3); see also sections 240B(a), (b) of the
Immigration and Nationality Act, 8 U.S.C. §§ 1229c(a), (b) (Supp. II 1996).
If voluntary departure is granted prior to the completion of removal proceedings, the Immigration Judge may grant a period of time up to 120 days,
as opposed to the 60-day limit when voluntary departure is sought at the
completion of proceedings.
8 C.F.R. § 240.26(e); see also sections
240B(a)(2), (b)(2) of the Act.
In the respondent’s case, voluntary departure was granted at the outset
of proceedings, for a period of 120 days, and without a bond being required.
The record thus reflects that the Immigration Judge granted the respondent
voluntary departure pursuant to section 240B(a) of the Act and its implementing regulations.
B. Eligibility for Voluntary Departure
The regulations set forth preconditions that must be met before the
Immigration Judge may grant voluntary departure prior to the completion
of removal proceedings. Those preconditions are as follows: (1) the voluntary departure request must be made prior to or at the master calendar hearing at which the case is initially calendared for a merits hearing; (2) the
alien must not seek any other form of relief and must withdraw any outstanding requests for relief; (3) the alien must concede removability; (4) the
alien must waive appeal of all issues; and (5) the alien must not have been
convicted of certain crimes described in the Act. 8 C.F.R. § 240.26(b)(1)(i);1
see also Matter of Arguelles, supra. As necessary, the Immigration Judge
may impose discretionary conditions on the grant of voluntary departure,
1
The regulation at 8 C.F.R. § 240.26(b)(1)(i) provides as follows:
Prior to completion of removal proceedings—(1) Grant by the immigration judge.
(i) An alien may be granted voluntary departure by an immigration judge pursuant to
section 240B(a) of the Act only if the alien:
(A) Makes such request prior to or at the master calendar hearing at which the case
is initially calendared for a merits hearing;
(B) Makes no additional requests for relief (or if such requests have been made, such
requests are withdrawn prior to any grant of voluntary departure pursuant to this section);
(C) Concedes removability;
(D) Waives appeal of all issues; and
(E) Has not been convicted of a crime described in section 101(a)(43) of the Act and
is not deportable under section 237(a)(4). (Emphasis added.)
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separate from the enumerated preconditions, to ensure that the alien departs
the United States within the time specified. 8 C.F.R. § 240.26(b)(3).
We observe that, in the respondent’s case, all but one of these preconditions have clearly been met. The respondent indicated at the master calendar hearing that he intended to seek voluntary departure.2 He made no
additional requests for relief and, through counsel, expressly withdrew his
only pending application. The respondent conceded removability. He established to the satisfaction of the Immigration Judge that he had never been
convicted of any crimes. Thus, the only precondition that was not clearly
satisfied on the record was the respondent’s waiver of his right to appeal.
See 8 C.F.R. § 240.26(b)(1)(i)(D).
C. Waiver of the Right to Appeal
The Immigration Judge clearly assumed that the respondent had waived
appeal. The record, however, is silent on this matter. We observe that at no
time did the Immigration Judge or either of the parties raise the issue of
appeal or discuss on the record the respondent’s right to appeal.
We appreciate that the Immigration Judge would not have granted this
form of relief unless she was satisfied that the respondent fully intended to
waive appeal. We also appreciate the administrative economies that
Immigration Judges rightfully pursue in the course of managing their dockets, and that this form of voluntary departure was created, in whole or in
part, to conclude cases promptly and decisively. See Matter of Cordova, 22
I&N Dec. 966 (BIA 1999). Nonetheless, given the regulatory requirement
that the right to appeal be waived and the due process implications of construing an “implicit” waiver of the right to appeal, as well as the jurisdictional implications of a waiver itself, we find it critical that the record must
clearly demonstrate that the right to appeal was actually, and not merely
constructively, waived by the alien. See, e.g., section 240(c)(4) of the Act, 8
U.S.C. § 1229a(c)(4) (Supp. II 1996) (“If the immigration judge decides
that the alien is removable and orders the alien to be removed, the judge
shall inform the alien of the right to appeal that decision . . . .”); United
States v. Gonzalez-Mendoza,
985 F.2d 1014, 1017 (9th Cir. 1993) (discussing the importance of not presuming that a fundamental right has been
waived); cf. Matter of Shih,
20 I&N Dec. 697 (BIA 1993) (advising that a
2
We are cognizant that, although the respondent clearly indicated his interest in voluntary departure at his first appearance before the Immigration Judge, he did not actually
request that relief until his hearing reconvened at a later date. We do not find this circumstance
problematic, however, because the rescheduling was treated by the parties and the
Immigration Judge as a continuation of the master calendar hearing.
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motion alleging that a waiver of appeal was not knowingly and intelligently
made should be filed with the Immigration Judge) (dictum).
To that end, we believe it prudent and necessary for Immigration
Judges to advise respondents, on the record, that the right to appeal must be
waived as a precondition to receiving this form of voluntary departure. See
Matter of Cordova, supra. The only instance in which an Immigration
Judge might safely forego such an oral notification is when the record contains a written stipulation or comparable documentary evidence wherein the
respondent, or the respondent’s counsel, expressly waives appeal as part of
establishing that all the regulatory requirements for this form of voluntary
departure have been satisfied. Accordingly, we hold that, without an oral
notice regarding the waiver of the right to appeal or a written attestation
reflecting the respondent’s awareness of this requirement, an Immigration
Judge lacks the authority to grant voluntary departure prior to the completion of proceedings. Because the record does not establish that the respondent waived appeal, the respondent’s appeal is properly before us.
IV. ELIGIBILITY FOR RELIEF
On appeal, the respondent contends that the Immigration Judge improperly denied him relief in the form of cancellation of removal. The record
reflects, however, that the respondent did not file such an application and had
never sought that form of relief before the Immigration Judge. Furthermore,
the record indicates that the respondent requested only voluntary departure.
The respondent’s argument is therefore without merit. If there were no other
issues in this case, the respondent’s appeal would qualify for summary dismissal as contemplated by 8 C.F.R. § 3.1(d)(1-a)(D) (1999).
The respondent does not contest his grant of voluntary departure.
Nonetheless, as we have observed, the Immigration Judge did not have the
authority to grant him that relief. Given the significance of this procedural
defect, the respondent’s apparent eligibility for voluntary departure, and the
ramifications for his right to appeal, we will remand the record to the
Immigration Judge to permit the respondent to reapply for voluntary departure in accordance with the requirements set forth in the regulations.3
ORDER: The appeal is sustained.
FURTHER ORDER: The Immigration Judge’s order of February
12, 1998, is vacated, and the record is remanded to the Immigration Court
for further proceedings consistent with the foregoing opinion.
Should the respondent elect not to seek this form of voluntary departure, the Immigration
3
Judge may entertain other requests for relief and conduct proceedings accordingly.
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