Interim Decision #3408
In re Julio Antonio CORDOVA, Respondent
File A91 432 440 - Fishkill
Decided August 6, 1999
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) If the evidence in the record does not indicate that an alien has been convicted of an aggravated felony or charged with deportability under section 237(a)(4) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(4) (Supp. II 1996), the Immigration Judge has the duty
to provide the alien with information about the availability and requirements of voluntary
departure under section 240B(a) of the Act, 8 U.S.C. § 1229c(a) (Supp. II 1996), and to provide the alien the opportunity to apply for this relief prior to taking the pleadings.
(2) An alien does not forfeit the right to apply for voluntary departure under section 240B(a)
of the Act by appealing an erroneous denial of this relief.
John A. Tapia, Esquire, Elmhurst, New York, for respondent
David V. Roy, Assistant District Counsel, for the Immigration and Naturalization Service
Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,
HOLMES, HURWITZ, VILLAGELIU, FILPPU, ROSENBERG, MATHON,
GUENDELSBERGER, GRANT, SCIALABBA, and MOSCATO, Board
Members. Dissenting Opinion: HEILMAN, Board Member, joined by COLE and
JONES, Board Members.
GRANT, Board Member:
In an oral decision dated March 26, 1998, an Immigration Judge denied
the respondent’s request for voluntary departure and ordered him removed
from the United States. The respondent’s appeal will be sustained, and the
record will be remanded to the Immigration Judge.
I. FACTUAL AND PROCEDURAL BACKGROUND
The respondent appeared before the Immigration Judge for his initial
hearing on March 26, 1998. The respondent, through counsel, admitted the
allegations, conceded removability under section 237(a)(1)(B) of the
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Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B) (Supp. II 1996),
as a nonimmigrant who remained longer than permitted, and designated
Peru as the country for removal. He further stated that he wanted to apply
for cancellation of removal and voluntary departure. However, the
Immigration and Naturalization Service submitted evidence of a conviction
for which the respondent served 321 days in jail. After an off-the-record discussion, the parties conceded that the respondent was not eligible for cancellation of removal, as he was precluded from establishing good moral
character under section 101(f)(7) of the Act,
8 U.S.C. § 1101(f)(7) (1994).
The respondent did not object to this determination and made no further
attempts to apply for this relief, i.e., he did not request the opportunity to
file an application for relief or request a continuance of the proceedings.
Without further inquiry or discussion regarding the requirements of section
240B(a) of the Act, 8 U.S.C. § 1229c(a) (Supp. II 1996), the Immigration
Judge concluded that the respondent was also ineligible for voluntary
departure because he could not establish good moral character.
II. APPELLATE ARGUMENTS
On appeal, the respondent argues that the Immigration Judge erred in
denying voluntary departure. Specifically, the respondent contends that the
Immigration Judge erred in requiring him to establish good moral character, as this is not a requirement for voluntary departure under section
240B(a) of the Act.
In response, the Service concurs with the Immigration Judge’s findings
and urges this Board to adopt his decision.
III. STATUTORY AND REGULATORY REQUIREMENTS
Under section 240B(a) of the Act, an alien may be granted voluntary
departure for a period of up to 120 days without being required to establish good moral character if the relief is granted prior to the completion of
such proceedings. Matter of Arguelles, 21 I&N Dec. 3399 (BIA 1999).
Regulations have been promulgated which provide further requirements
for granting voluntary departure under section 240B(a) of the Act. Under
the regulations set forth at
8 C.F.R. § 240.26(b)(1)(i) (1998), an alien is
eligible for voluntary departure pursuant to section 240B(a) of the Act if
he or she:
(A) Makes such request prior to or at the master calendar hearing at which the case
is initially calendared for a merits hearing;
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(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).
IV. MERITS OF THE RESPONDENT’S APPEAL
There is no contention that the respondent has been convicted of a
crime described in section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43)
(1994 & Supp. II 1996), or is deportable under section 237(a)(4) of the Act.
Accordingly, the only issues relating to the respondent’s eligibility for this
relief are whether he made his request for voluntary departure at his master
calendar hearing, whether he made additional requests for relief, whether he
is barred from eligibility for voluntary departure under section 240B(a)
because he filed an appeal, and whether he was adequately advised of the
conditions under which he could apply for voluntary departure under section 240B(a) of the Act.
A. Master Calendar Hearing
In order to be eligible to apply for voluntary departure under section
240B(a) of the Act without establishing good moral character, an alien
must make “such request prior to or at the master calendar hearing at
which the case is initially calendared for a merits hearing.” 8 C.F.R. §
240.26(b)(1)(i)(A); see also Matter of Arguelles, supra. Neither the Act nor
the regulations define a “master calendar hearing.” However, we understand
such a hearing to be a preliminary stage of the proceedings at which, even
though little or no testimony is taken, the Immigration Judge has great flexibility to identify issues, make preliminary determinations of possible eligibility for relief, resolve uncontested matters, and schedule further hearings. In
addition, this is the stage of the proceedings at which the Immigration Judge
generally ensures that an alien has been advised of his or her rights under the
Act and applicable regulations, including rights to apply for relief, and has
been given notice and warnings regarding his or her obligation to attend
future hearings, file applications and evidence in a timely manner, and otherwise cooperate with orders of the Immigration Court.
The Immigration Judge erred in concluding that the respondent could
not apply for voluntary departure once removal proceedings had been initi-
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ated under section 240 of the Act, 8 U.S.C. § 1229a (Supp. II 1996).
Neither party disputes that the respondent requested voluntary departure at
his master calendar hearing.1 Moreover, the record indicates that this was
his initial hearing, and no separate merits hearing was scheduled. Therefore,
the respondent requested voluntary departure at the appropriate point in the
proceedings and should have been allowed to pursue this relief.
B. Additional Requests for Relief
An alien may make no other requests for relief or must withdraw any previously made requests for relief in order to be eligible for voluntary departure
under section 240B(a) of the Act. 8 C.F.R. § 240.26(b)(1)(i)(B); see also
Matter of Arguelles, supra. In this case, the respondent stated that he wanted
to apply for cancellation of removal. This request, however, should not preclude him from eligibility for voluntary departure under section 240B(a) of
the Act. The respondent presented no objection on the record to the
Immigration Judge’s determination that he was ineligible for cancellation of
removal and, importantly, he took no further actions, such as submitting an
application or requesting a continuance, to do so.2 See
8 C.F.R. § 240.20(a)
(1998). Even if this inquiry about his eligibility for cancellation of removal
is considered a “request for relief,” his failure to pursue it should be seen as a
withdrawal of such request before the Immigration Judge, particularly where,
as discussed below, the respondent was not advised that he could apply for
voluntary departure under section 240B(a). Therefore, under the circumstances, we find that this respondent should not be prevented from seeking
voluntary departure based on his inquiry about cancellation of removal and
his failure to formally withdraw the request.
C. Waiver of Appeal
To be eligible for voluntary departure under section 240B(a) of the Act,
an alien must also waive appeal of all issues. 8 C.F.R. § 240.26(b)(1)(i)(D);
see also Matter of Arguelles, supra. In this case, however, the Immigration
Judge erred in failing to even consider the respondent’s potential eligibility
for voluntary departure under section 240B(a) of the Act, applying instead
1
We do not address in this decision the situation where an alien has been scheduled for
a merits hearing.
2
The respondent contested the denial of both voluntary departure and cancellation of
removal on the Notice of Appeal (Form EOIR-26). However, in his brief, he withdrew his
appeal of the denial of cancellation of removal. Therefore, we do not consider this issue to
have been contested on appeal by the respondent. See generally Matter of Franklin, 20 I&N
Dec. 867, 868 (BIA 1994), aff’d,
72 F.3d 571 (8th Cir. 1995), cert. denied,
519 U.S. 834
(1996); Matter of Fedorenko,
19 I&N Dec. 57, 72 (BIA 1984).
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the more stringent standard for section 240B(b).3 Thus, the Immigration
Judge deprived the respondent of a meaningful opportunity to apply for a
form of relief for which he was, in fact, eligible. The respondent’s attempt
to correct the Immigration Judge’s error through an appeal should not cause
him to lose the right to apply for voluntary departure simply because his
request was improperly denied. Therefore, he should be given the opportunity to apply for the correct form of relief. See Waldron v. INS, 17 F.3d 511
(2d Cir. 1993), cert. denied,
513 U.S. 1014 (1994).
We do not find that the respondent’s appeal from the denial of his
request for cancellation of removal is inconsistent with his position that he
is entitled to seek relief under section 240B(a) of the Act. The fundamental
problem presented is confusion concerning both the rights and the requirements contained in the regulations that govern voluntary departure. If the
respondent had been properly informed of his eligibility for voluntary
departure and the requirement that he must withdraw his request for any
other forms of relief, we could find that an appeal from the denial of cancellation of removal would render him ineligible under section 240B(a).
However, because the respondent was not informed of his rights under section 240B(a), and because he withdrew his appeal on the issue of cancellation of removal, we conclude that the appeal is not detrimental to his request
for voluntary departure.
D. Immigration Judge’s Duty To Inform
Aliens of Apparent Eligibility
An Immigration Judge has a duty to inform aliens of potential forms of
relief for which they are apparently eligible, including voluntary departure.
The relevant regulation provides that “[t]he Immigration Judge shall inform
the alien of his or her apparent eligibility to apply for any of the benefits
enumerated in this chapter and shall afford the alien an opportunity to make
application during the hearing.” 8 C.F.R. § 240.11(a)(2) (1998).4 In order
3
Under section 240B(b) of the Act, an alien may be granted 60 days’ voluntary departure at the conclusion of proceedings if the alien can show, inter alia, good moral character
for a period of 5 years immediately preceding the application for relief. See Matter of
Arguelles, supra.
4
The previous regulation requiring Immigration Judges to inform aliens of apparent eligibility for relief did not include voluntary departure. 8 C.F.R. § 242.17(a) (1997) (requiring
Immigration Judges “to inform the respondent of his or her apparent eligibility to apply for any
of the benefits enumerated in this paragraph and . . . afford the respondent an opportunity to
make application therefor during the hearing” (emphasis added)). Rather, the opportunity to
apply for voluntary departure was described in
8 C.F.R. § 242.17(b), which contained no notification requirement. In contrast, the current regulation applicable in this case requires
Immigration Judges to inform the respondent of apparent eligibility for all “benefits enumerated
in this chapter,” which includes voluntary departure.
8 C.F.R. § 240.11(a)(2) (emphasis added).
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to accord full due process to all aliens who may be eligible for voluntary
departure under section 240B(a) of the Act, the Immigration Judge must
notify all aliens who are apparently eligible of the availability of voluntary
departure under section 240B(a) of the Act.
To ensure that all aliens are informed of this relief in a manner which
allows them to timely apply, the Immigration Judge should notify any
respondent who is apparently eligible for this relief of that fact and give the
person an opportunity to apply for relief no later than at the master calendar hearing at which the case is initially calendared for a merits hearing. If,
as in the present case, there is no separate master calendar hearing, the
information regarding section 240B(a) and the opportunity to apply for this
form of voluntary departure should be provided prior to the taking of pleadings in the matter, so that the respondent will not inadvertently waive his or
her right to apply for relief. We note that an alien’s apparent eligibility for
voluntary departure under section 240B(a) of the Act would be shown if
there is no evidence in the record that the alien has been convicted of an
aggravated felony under section 101(a)(43) of the Act or that the alien has
been charged with deportability under section 237(a)(4) of the Act. The
Immigration Judge should also advise the alien at this time that relief under
section 240B(a) will be forfeited if the alien contests removability or pursues other applications for relief. Finally, the Immigration Judge should
explicitly advise the alien that he or she must waive the right to appeal in
order to be granted this form of voluntary departure.
We emphasize that this decision is intended to complement the guidance set forth by this Board in Matter of Arguelles, supra, and not to alter
or modify that decision in any respect. For example, our present holding
regarding the Immigration Judge’s obligation to inform respondents of the
availability of relief under section 240B(a) and to provide an opportunity to
apply for such relief does not alter any observation in Matter of Arguelles
that an alien is not bound to apply for this relief at the initial master calendar hearing. We reiterate that voluntary departure under section 240B(a) is
a tool that Immigration Judges can use to efficiently dispose of numerous
cases on their docket. However, in order to ensure that this tool is utilized
fairly, it is critical that respondents be informed of the requirements for
relief, as well as their apparent eligibility, and that they be given the opportunity to apply for such relief in a timely manner.
V. CONCLUSION
The respondent conceded removability, requested voluntary departure
at his initial master calendar hearing, and did not pursue other forms of
relief. He was not informed of the conditions under which he could apply
for voluntary departure under section 240B(a) of the Act and was, in fact,
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denied a meaningful opportunity to apply for this relief. As the respondent
was apparently eligible for voluntary departure, he should have been
informed of this fact and provided an opportunity to apply. Because this is
a discretionary form of relief, and because the Immigration Judge has the
authority and discretion to impose a bond under section 240B(a)(3) of the
Act, it is appropriate to remand this matter to the Immigration Judge for
consideration of the respondent’s application in the exercise of discretion.
See Matter of Arguelles, supra. Accordingly, the appeal will be sustained
and the record will be remanded.
ORDER: The appeal is sustained.
FURTHER ORDER: The Immigration Judge’s order of March 26,
1998, is vacated, and the record is remanded to the Immigration Court for
further proceedings consistent with this opinion.
Board Member Neil P. Miller did not participate in the decision in this case.
DISSENTING OPINION: Michael J. Heilman, Board Member, in which
Patricia A. Cole and Philemina M. Jones, Board Members, joined
I respectfully dissent.
I disagree with the majority’s conclusion that the respondent was eligible for and should have been granted voluntary departure under section
240B(a) of the Act, 8 U.S.C. § 1229c(a) (Supp. II 1996). Because the
respondent requested cancellation of removal, which was denied, and
filed a subsequent appeal, he was not eligible for voluntary departure
under section 240B(a). I also find that it was unnecessary for the
Immigration Judge to inform the respondent of “master calendar” voluntary departure.
I. DEFINITION OF A MASTER CALENDAR HEARING
The majority states that neither party disputes the fact that the respondent requested voluntary departure during the “master calendar” hearing.
This characterization is misleading. The issue of whether the respondent
requested this relief at the proper point in the proceedings was not raised by
either of the parties. It is a crucial issue which must be addressed in determining whether the respondent is eligible for voluntary departure. The
majority concludes, however, that there was a “master calendar” hearing
without considering whether the type of hearing actually held here is contemplated in the Act and the regulations.
I do not think this was a “master calendar” hearing as contemplated by
the regulation. Under 8 C.F.R. § 240.26(b)(1)(i)(A) (1998), an alien is eligible for voluntary departure under section 240B(a) if he or she “[m]akes
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such request prior to or at the master calendar hearing at which the case is
initially calendared for a merits hearing.” In this case, the respondent’s
hearing was never scheduled for a separate merits hearing. Rather, the
respondent’s entire merits hearing was held during the respondent’s first
appearance before the Immigration Judge.
As noted by the majority, there is no clear statutory or regulatory definition of a “master calendar” hearing. Rather than propose a definition,
however, the majority provides a loose concept of a master calendar hearing as it perceives it. The hearing that was held in this case went well
beyond that disposition of matters described by the majority as appropriate
to a “master calendar” hearing.
Given the new consequences attached to the transition from a master
calendar hearing to an individual merits hearing, I think it is necessary to
have a clear definition of a master calendar hearing. While it is important
that Immigration Judges have flexibility in handling their caseload, it is
equally important that aliens and their counsel have a clear understanding
of the type of hearing in order to know whether or not relief such as voluntary departure is available. A clear definition would also promote a more
uniform practice. Accordingly, I suggest that a definition of a master calendar hearing be provided either through regulation or precedent decision.
This Board recently articulated our belief that Immigration Judges
were given broad authority over voluntary departure prior to the conclusion of proceedings in order to promptly conclude cases. Matter of
Arguelles, 22 I&N Dec. 3399 (BIA 1999). Continued eligibility for “master calendar” voluntary departure after an alien has been given his entire
merits hearing, no matter how abbreviated, does not promote a prompt
conclusion of the case.
II. ADDITIONAL REQUESTS FOR RELIEF
I disagree with the majority’s conclusion that the respondent’s request
for cancellation of removal should not disqualify him for voluntary departure under section 240B(a) of the Act. Because he requested both voluntary
departure and cancellation of removal, the respondent was not eligible for
voluntary departure at the time of his request. The regulation cited by the
majority clearly shows that an alien cannot be eligible for this relief if he or
she has made other requests for relief that have not been withdrawn. 8
C.F.R. § 240.26(b)(1)(i)(B). The respondent requested cancellation of
removal and never withdrew this request. To support the idea that the
respondent withdrew his request, the majority points out that he never filed
an application. However, there was no reason for the respondent to file an
application or withdraw his request, as the Immigration Judge concluded
that he was not eligible for this relief.
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Moreover, the respondent’s appeal of the denial of cancellation of
removal indicates that he did not withdraw his request for this relief and
was therefore ineligible for voluntary departure under section 240B(a).
While his subsequent withdrawal of this request for relief, on appeal,
indicates that it is not an issue for us to consider on appeal, it does not
indicate that he withdrew his request for cancellation of removal. In fact,
it clearly shows that the respondent did not withdraw this request during
the hearing before the Immigration Judge. If he had withdrawn his
request, he would have had no reason to contest the denial of cancellation of removal on appeal. The time for him to withdraw such a request
was prior to or at the time that he was requesting voluntary departure at
his “master calendar” hearing. Accordingly, I find that he did not withdraw his request at the appropriate time and was therefore ineligible for
voluntary departure.
III. WAIVER OF APPEAL AND IMMIGRATION
JUDGE’S DUTIES
I also disagree with the majority’s emphasis on the Immigration
Judge’s failure to advise the respondent of the availability of voluntary
departure under section 240B(a) of the Act. The majority disregards the
respondent’s noncompliance with the requirement to waive appeal on all
issues, because the Immigration Judge did not inform the respondent on the
record that voluntary departure may have been available to him. In order to
reach this conclusion, the majority must ignore the fact that the respondent
is not eligible for “master calendar” voluntary departure.
The respondent was represented by counsel. In this case, the respondent
chose to pursue both cancellation of removal and voluntary departure. The
respondent’s attorney should have informed him that he would not be able
to pursue voluntary departure under section 240B(a) if he pursued cancellation of removal. The respondent has not asserted that his attorney failed to
inform him of his choices and the consequent risks. In fact, the respondent
has not even asserted that he was unaware of voluntary departure or of its
requirements. Therefore, in continuing to pursue cancellation of removal,
the respondent took a calculated risk that he would be denied both forms of
relief.
Requiring Immigration Judges to advise aliens, particularly those who
are represented by counsel, when the aliens are requesting additional forms
of relief, will not promote the efficient processing of cases. Requiring
detailed warnings in cases where the alien is pursuing other forms of relief
and allowing aliens to pursue “master calendar” voluntary departure after
being denied another form of relief will only make these proceedings longer
and more cumbersome.
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IV. CONCLUSION
I find no error in the way the Immigration Judge conducted the proceedings. The respondent was represented by counsel, chose to pursue both
cancellation of removal and voluntary departure, was denied cancellation of
removal, and did not waive his right to appeal all issues, including cancellation of removal. The respondent did not meet the basic requirements for
voluntary departure as set forth in 8 C.F.R. § 240.26(b)(1). Therefore, I
would find that the respondent failed to establish eligibility for the requested relief. Moreover, under the circumstances in this case, I would not
require an Immigration Judge to inform the respondent of the availability of
voluntary departure. Accordingly, I would dismiss the appeal.
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