Cite as
24 I&N Dec. 47 (BIA 2006) Interim Decision #3546
In re Jose Dario DIAZ-RUACHO, Respondent
File A70 742 438 - Los Angeles
Decided November 15, 2006
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien who fails to post the voluntary departure bond required by section 240B(b)(3)
of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b)(3) (2000), is not subject to
penalties for failure to depart within the time period specified for voluntary departure.
FOR RESPONDENT: Jeremy R. Frost, Esquire, Los Angeles, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Christie Woo-Thibodeaux,
Assistant Chief Counsel
BEFORE: Board Panel: HURWITZ, Acting Vice Chairman; HOLMES and GRANT,
Board Members.
GRANT, Board Member:
The respondent seeks reopening of his removal proceedings for further
consideration of his application for cancellation of removal under section
240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2000).
The issue presented in this case is whether an alien who fails to post the
voluntary departure bond required by section 240B(b)(3) of the Act, 8 U.S.C.
§ 1229c(b)(3) (2000), is subject to penalties for failure to depart within the
time period specified for voluntary departure. We find that the posting of a
voluntary departure bond is a condition precedent to permission to depart
voluntarily at the conclusion of a removal proceeding. We therefore conclude
that an alien who fails to meet the voluntary departure bond requirement is not
subject to the penalties of section 240B(d)(1) of the Act. The respondent’s
motion to reopen will be granted and the record will be remanded to the
Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
In a decision dated June 24, 2002, the Immigration Judge denied the
respondent’s application for cancellation of removal, finding that he had not
established that his removal would cause the requisite exceptional and
extremely unusual hardship to a qualifying relative. The Immigration Judge
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also granted the respondent voluntary departure for a period of 30 days,
entering the following order:
IT IS HEREBY ORDERED that the application for cancellation of removal is
denied.
The respondent will be granted the privilege of voluntary departure until July 24,
2002, upon payment of a bond in the amount of $500 in the next five business days.
An alternate order of removal to Mexico should he not comply.
The respondent filed a timely appeal from that decision. On December 16,
2003, we affirmed without opinion the Immigration Judge’s decision denying
cancellation of removal. In addition, we reinstated the Immigration Judge’s
voluntary departure grant, providing the respondent 30 days from the date of
our decision to depart if he complied with all the conditions of voluntary
departure.
On February 13, 2004, the respondent filed a motion requesting that we
reopen proceedings and remand his case to the Immigration Judge to consider
material evidence of hardship to qualifying relatives arising subsequent to the
original hearing. The respondent attached medical records indicating that his
lawful permanent resident father had recently developed a heart murmur; that
his lawful permanent resident mother had been diagnosed with
hypothyroidism, degenerative disc disease, and other conditions; that these
conditions have required his parents to move in with him; and that his parents
have no other relatives in the United States who could care for them. The
respondent also provided an affidavit explaining that he did not post the $500
voluntary departure bond, as ordered by the Immigration Judge, because he
was unable to secure the necessary funds.
On March 25, 2004, we denied the respondent’s motion to reopen, finding
that he was “no longer eligible for cancellation of removal for 10 years for
failure to comply with the Board’s December 16, 2003, decision allowing him
voluntary departure.” The respondent appealed our denial of his motion to
reopen to the United States Court of Appeals for the Ninth Circuit. On May
25, 2006, we entered an Interim Order vacating our March 25, 2004, order and
reinstating the respondent’s motion to reopen and remand in order to consider
“the impact of the respondent’s alleged failure to post the $500 voluntary
departure bond on the application of section 240B(d) of the Act.” On June 1,
2006, the Ninth Circuit entered an order dismissing the petition for review in
light of our decision to reconsider the respondent’s motion to reopen.
II. ANALYSIS
The issue before us is whether the respondent is barred by section
240B(d)(1) of the Act from reopening proceedings for further consideration
of his application for cancellation of removal. The respondent argues that
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under the statute and implementing regulation, his grant of voluntary
departure was conditioned on the posting of a voluntary departure bond and
that, having failed to post the bond, he is not subject to the penalties of section
240B(d)(1) for failing to depart voluntarily. The Department of Homeland
Security (“DHS”) argues that once an Immigration Judge enters an order of
voluntary departure, the section 240B(d)(1) penalties apply, without regard to
whether the respondent posts the requisite bond.
We begin with the relevant language of the statute. Section 240B(b)(1) of
the Act, which sets forth the basic eligibility requirements for voluntary
departure granted at the conclusion of immigration proceedings, provides as
follows:
The Attorney General may permit an alien voluntarily to depart the United States
at the alien’s own expense if, at the conclusion of a proceeding under section 240, the
immigration judge enters an order granting voluntary departure in lieu of removal and
finds that—
(A) the alien has been physically present in the United States for a period of at
least one year immediately preceding the date the notice to appear was served under
section 239(a);
(B) the alien is, and has been, a person of good moral character for at least 5 years
immediately preceding the alien’s application for voluntary departure;
(C) the alien is not deportable under section 237(a)(2)(A)(iii) or section 237(a)(4);
and
(D) the alien has established by clear and convincing evidence that the alien has
the means to depart the United States and intends to do so.
According to section 240B(b)(2), the period of voluntary departure that may
be granted at the conclusion of proceedings is limited to 60 days.
Section 240B(b)(3) of the Act requires the posting of a voluntary departure
bond in the following terms:
An alien permitted to depart voluntarily under this subsection shall be required to
post a voluntary departure bond, in an amount necessary to ensure that the alien will
depart, to be surrendered upon proof that the alien has departed the United States
within the time specified.
(Emphasis added.) Civil penalties for failing to depart voluntarily are set forth
in section 240B(d)(1) as follows:
Subject to paragraph (2), if an alien is permitted to depart voluntarily under this
section and voluntarily fails to depart the United States within the time period
specified, the alien—
(A) shall be subject to a civil penalty of not less than $1,000 and not more than
$5,000; and
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(B) shall be ineligible, for a period of 10 years, to receive any further relief under
this section and sections 240A, 245, 248, and 249.1
The regulation implementing the statutory provisions for voluntary
departure provides that under section 240B(b) of the Act, the alien “shall be
required to post a voluntary departure bond, in an amount necessary to ensure
that the alien departs within the time specified, but in no case less than $500.”
8 C.F.R. § 1240.26(c)(3) (2006). The bond must be posted with the district
director “within 5 business days of the immigration judge’s order granting
voluntary departure.”
Id. The district director may hold the alien in custody
until the bond is posted.
Id. The same regulation explicitly addresses the
consequences of failing to meet the bond requirement:
If the bond is not posted within 5 business days, the voluntary departure order shall
vacate automatically and the alternate order of removal will take effect on the
following day.
Id. The requirement that bond be posted within 5 days is not tolled by the
filing of a notice of appeal to the Board. See Matter of A-M-,
23 I&N Dec.
737, 744 n.8 (BIA 2005).
Neither the statute nor the regulation addresses whether an alien who fails
to post the required bond is subject to the civil penalties contained in section
240B(d)(1) of the Act. The determinative question is whether the penalties
and privileges pertaining to voluntary departure attach at the time of the
Immigration Judge’s decision at the conclusion of the immigration
proceedings or upon the posting of the voluntary departure bond.
The statute’s imposition of a mandatory bond requirement for voluntary
departure at the conclusion of removal proceedings strongly indicates that
Congress intended that the privileges and penalties related to section 240B(b)
voluntary departure do not apply until the statutory bond requirement is
satisfied. As a practical matter, it is probably not uncommon that an applicant
for voluntary departure may find it difficult or impossible to provide the
required $500 for bond in the limited time afforded. Anticipated sources of
funding may fall short or turn out to be unavailable within the 5-day window.
We find it unlikely that Congress intended that the penalties of section
240B(d) be applied to an alien who was unable to meet the bond deadline.
In Matter of A-M-, supra, we noted that “[t]he posting of a voluntary
departure bond is a statutory condition precedent to ensure that an alien
departs within the time afforded.” Id. at 744 n.8 (emphasis added). Under the
statutory and regulatory framework, voluntary departure granted at the
conclusion of a hearing remains inchoate until the posting of a bond within
5 days of the order. The wording of the Immigration Judge’s order in this
1
Section 240B(d)(2) provides an exception to the civil penalties in section 240B(d)(1) for
a limited class of aliens not relevant to this decision.
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case reflects this understanding of the law, inasmuch as it states that “[t]he
respondent will be granted the privilege of voluntary departure until July 24,
2002, upon payment of a bond in the amount of $500 in the next five business
days.” (Emphasis added.) The regulation provides additional support for this
reading by stating that the voluntary departure order “shall vacate
automatically” upon failure to post the bond within 5 business days and the
alternate order of removal takes effect on the following day.
8 C.F.R.
§ 1240.26(c)(3). Because failure to post a voluntary departure bond results in
the automatic vacation of the voluntary departure order, an alien who did not
timely post a bond is not subject to the penalties of section 240B(d)(1) of the
Act.
III. CONCLUSION
In this case, the respondent did not overstay his period of voluntary
departure because, upon his failure to post bond, the voluntary departure order
was vacated by regulation and the penalties of section 240B(d)(1) did not
attach. He is therefore not precluded from reopening for further consideration
of his application for cancellation of removal if he otherwise meets the
requirements for a motion to reopen. The respondent has submitted
significant evidence of material changes in the medical condition of his lawful
permanent resident parents subsequent to the prior hearing on the issue of
hardship for cancellation of removal. We will therefore remand the record for
further proceedings before the Immigration Judge. On remand, the
Immigration Judge may take into account the circumstances related to the
failure to post bond in determining whether cancellation of removal should be
afforded in the exercise of discretion.
ORDER: The motion to reopen is granted.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.
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