In a recent decision the Board of Immigration Appeals (BIA) ruled that an alien in deportation proceeding must expressly waive his right to an appeal before voluntary departure may be granted by the immigration judge. This requirement protects the alien’s right to seek further relief before an appellate court.
Voluntary Departure
Under section 240 of the Immigration and Nationality Act (INA) Removal Hearings are conducted to determine if an alien who was admitted into the United States is deportable as charged by the INS in a document called a Notice to Appear, and to determine if the alien should be removed or granted some form of relief. This relief includes the right to stay in the United States as a lawful permanent resident.
At the Removal hearing the Immigration Judge will advise the alien of his or her right to legal representation, advise the alien of availability of legal services, advise the alien of the opportunity to present evidence in his defense, place the alien under oath, read factual allegations and charges in the Notice to Appear, inform the alien of any apparent eligibility for discretionary relief and render a decision based upon clear and convincing evidence.
There are a number of forms of discretionary relief from deportation one of which is Voluntary Departure. In order to be eligible the alien must be willing and able to depart the United States and:
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 Immigration Act.
The benefit of voluntary departure as opposed to being deported is that if an alien departs the United States pursuant to a voluntary departure grant his right to legally return to the United States is not prejudiced. Whereas a deportation order requires a statutory period of time before the deported alien may seek readmission.
At what point an alien is granted voluntary departure is also critical. If the alien is granted voluntary departure at any time prior to completion the judge may grant a time not to exceed 120 days for the alien to depart. If the deportation hearing is completed the judge may not grant a time that exceeds 60 days.
Court Requires Express Waiver
The decision of an immigration judge in a deportation proceeding may be rendered orally or in writing and the decision will include a finding as to deportability and any to any application for relief made by the alien.
The decision of the immigration judge may range from a finding that the alien is deportable to a grant of relief. An alien may be found deportable but may receive a grant of voluntary departure. Regardless of the decision by the immigration judge either the INS or the alien may appeal the decision to the BIA.
In Matter of Ocampo, the Court recently ruled that the right to appeal was not only a regulatory right which had due process implications but of such importance to the alien that the waiver of such must be expressly made prior to a judge’s decision to grant voluntary departure.
The Court found it critical that the record must clearly demonstrate that the right to appeal was actually, and not merely constructively waived by the alien. To accomplish this the Court said that Immigration Judges should advise respondents on the record that the right to an appeal must be waived as a precondition to receiving voluntary departure. The Court finally held that, “the Immigration Judge lacks the authority to grant voluntary departure without an oral notice regarding the waiver of the right to appeal or a written attestation reflecting the respondent’s awareness of this requirement.”
Decision Time
Deportation proceeding in front of an Immigration Judge is a complex and intimidating situation for all aliens. The decisions that must be made regarding request for relief, voluntary departure and the right to appeal are not easy and are best made with the help of those who have experience in such matters. Reeves and Associates have successfully represented aliens in deportation for over 20 years.
