You are on page 1of 43

U.S.

Department of Justice
.xecutive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leeburg Pke, Suite 2000
!als Clwrc1, Yrgi11ia 20530


OHS
/
ICE Ofice of Chief Counsel - NYC
26 Federal Plaza, 11th Floor
New York, NY 10278
Name: SANCHEZ-MEDINA, MARIA LUO @@ A 087-944-781
Date of this notice:
6
/27/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
DO Cw
Donna Carr
Chief Clerk
williame
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Maria Ludivia Sanchez-Medina, A087 944 781 (BIA June 27, 2014)
U.S. Department of Justice
Executive Ofce fr Imigation Review
Decision of the Boad of Imigation Appeals
Falls Church, Virginia 20530
File: A087 944 781 - New York, NY
In re: M LUDIVIA SANCHEZ-MEDINA
IN REMOVAL PROCEEDINGS
CERTIFICATION
ON BEHALF OF RESPONDENT: Pro se
CHARGE:
Date:
Notice: Sec. 237(a)(l)(B), I&N Act (8 U.S.C. 1227(a)(l)(B)] -
In the United States in violation of law
APPLICATION: Voluntary deparre
JUN 2 7 2014
The respondent is a native and citizen of Colombia. In a request dated December 17, 2012,
the Immigration Judge asks this Boad on certifcation to render an advisor opinion regading
the Immigtion Judge's authority to gant a period of voluntay departure nunc pro te.
Cerifcation appears to be requested pursuant to 8 C.F.R. 1003.l(c) and 1240.l(a)(2),
because it presents a novel issue of law, involving statutory ad regulatory constuction not yet
settled. Te Immigration Judge also ordered the respondent removed in absentia. However,
neither paty has appealed or fled a brief on certifcation challenging the Immigation Judge's
decision. Advisory opinions are stongly disfvored as a prudential matter ad, under the
circumstances presented i this case, we decline to exercise our discreton to render a advisor
opinion. See 8 C.F.R. 1003.l(c); Mater of Leon-Orosco & Rodrigez-Cola, 19 I&N
Dec. 136, 152 (BIA 1983, A.G. 1984). We will therefre remand the record to the Immigation
Judge fr frther proceedings consistent with this order and enty of a new decision.
Accordingly, the fllowing order will be entered.
ORER: The record is remanded to the Immigration Judge fr frther proceedings
consistent with the fregoing opinion and fr the enty of a new decision.
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Maria Ludivia Sanchez-Medina, A087 944 781 (BIA June 27, 2014)
UNITED STATES DEPATMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
IMIGRATION COURT
26 FEDERAL PLZ 12TH FL.,RM1237
NEW YORK, NY 10278
SACHEZ-MEDINA, MAIA LUDIVIA
650 Main Street #lE
New Rochelle, NY 10801
IN THE MATTER OF FILE A 087-944-781
SACHEZ-MEDINA, MARIA LUDIVIA
UNALE TO FORWARD - NO ADRESS PROVIDED
DATE: Dec 18, 2012
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JUGE. THIS DECISION
IS FINAL ULESS A APPEAL IS FILED WITH THE BOAD OF IMMIGRTION APPEALS
WITHIN 30 CAENDA DAYS OF THE DATE OF THE MILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS A INSTRUCTIONS FOR PROPERLY PREPAING YOU APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUENTS, AD FEE OR FEE WAIVER REQUEST
MUST BE MILED TO: BOARD OF IMIGRTION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION .UDGE A THE RESUT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVA HEAING.
THIS DECISION IS FINAL ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMIGRTION A NATIONAITY ACT, 8 U.S.C.
SECTION 1252B(c} (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
8 U.S.C. SECTION 1229a(c) (6) IN REMOVA PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRTION COURT
26 FEDERL PLZ 12TH FL.,RM1237
NEW YORK, N 10278
X OTHER: ORDER OF THE IMMIGRTION JUDGE.
CC: DISTRICT COUNSEL, NYC DISTRICT
26 FEDERAL PLZA, ROOM #1130
NEW YORK, NY, 10278
EUICE KG
COURT CLERK
IMMIGRATION COURT FF
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
In the Matter of
UNITED ST ATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
BEFOR TH IMMIGRATION COURT
NEW YORK, NEW YORK
Maria Ludivia Sanchez Medina A 087-944-781
Respondent In Removal Proceedings
On behalf of Respondent: On behalf of DHS:
No one Asst. Distict Counsel
ORDER OF THE IMMIGRATION JUDGE
The respondent is identifed as M-L-S-M- in te attached decision of today's date which
is hereby incorporated as if flly set frth. The court makes the fndings of fct, conclusions of
law, and discretionary decisions stated in that attached decision, and issuers the fllowing order:
ORDER
IT IS HEREBY ORDERED that respondent be removed in absentia to Colombia. She will have
180 days to rescind this order.
IT IS FURTHER ORDERED that this case be consolidated with the fur other cases listed in the
attached decision fr purposes of certifcation to the BIA, and is hereb
&
d to the BIA
according to section I of the attached decision.
William Van Wy
Immigration Judg
December 17, 2012
Respondent shall have 180 days to move to rescind this decision. A copy of this decision will be
sent to her last known address in the US.
DHS has until Jaua 16, 2013 to appeal.
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
9
I the Matters of:
F-I- 1
R-C-H
M-L-S-M
C-X
V-D-
Respondents
UNITED STAES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMGRTION RVIW
UNITED STATES IMMIGRTION COURT
26 FEDER PLAZA, ROOM 1237
NW YORK, N I 0278
A096-204-491
A097-527-925
A087-944-781
A087-908-262
A088-740-894
In Removal Proceedings
Chaes
On behalf of
Respondents: On Behalf of DHS:
Lawrence Arok
Dan Kelly
F-I
R-C-H-
M-L-S-M
C-X-
Chistopher Jones
William Ferandez
Pro se
Pro se
Ane Gannon
The Door Legal
Services
APPLICATIONS: Voluntar Departure, Nunc Pro Tune
Overstay INA 237(a)(l)(B)
Present w/o Admission
IA 212(a)(6)(A)(i)
Overstay, IA 237(a)(l)(B)
Present w/o Admission
IA 212(a)(6)(A)(i)
Overstay IA 237(a)(l)(B) V-D- David Shteingat
Terination (V-D- only)
DECISION AND ORDERS OF THE IMMIGRTION JDGE
AND CERTIFICATION TO THE BJ.A.
I. CERTIICATION T TH BI
These fve cases a consolidated fr this decision and certifed to the Board of
Immigration Appeals under 8 C.F.R. 1003 .1 ( c) and 1240.1 ( a)(2) because they jointly present a
novel issue of law, involving statutory and regulator constction not yet setled, that fquently
presents itself at the ta cou level.
1 The confdentialit of each respondent in this joint decision is respected by identifing them by initials and A
numbers only. The fle i each case contains all the relevant details.
1
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
9
When a person in removal proceedings who meets the requirements of voluntary
departure and merits a fvorable exercise of discretion has lef the U.S. prior to a scheduled
heaing, does te imgration court have discretion to inquire into the reasons fr the departure
and whether the person actually lef? And does the court have the authority under the IA ad
reglations to grat a period of voluntary depaure nunc pro tun? A nunc pro tune order of
voluntar depaure ca gant a period tat expires befre the date of the court's order, thus
ripenig into a fnal order of removal efective imediately on the day of the order, if the
respondent should still be i the US. Such a order can protect a worty respondent against the
5-yea bar to admission fr removal upon aval under INA 212(a)(9)(A)(i), the 10-yea ba fr
any other removal under IA 212(a)(9)(A)(ii), and the fve-year bar fr failing to appea at a
scheduled hearing without reasonable cause, IA 212(a)(6)(B), as voluntar depae is
intended to do. It would also protect DHS's interest in carng the removal proceedig to a
conclusion, with fdings about all charges, and a fnal order that includes an order of remova i
respondent does not leave as required.
Or, as DHS argues, with suppor fom dictu outside the Second Circuit, is such
discretiona acton prohibited in ever case because IA 240(b)(5)(A) requires a judge to order
alsuch people removed in absentia, even if they ae aleady out of te US? "Te plain langage
of the statute is clear: once an imgation judge has deterined that an alien (1) is removable
ad (2) has been provided with adequate notice, that judge 'shall' issue a removal order." Ahmed
v Gonales, 432 F3d 709, 711 (7t Cir. 2005).
These five cases raise that common issue about the cour's power to act. Addressing te
issue requires constction of relevant provisions of the statute and regulations.
II. INTODUCTION
A. A Varet of Factual Circumstaces Present the Comon Legal Issue
Consolidating various cases fr a common analysis enables recogition of fctual paters
relevant to constction of the statute and regulations, and exposes the Board to some of the
circumstaces at te imigation cou level that infor this cour's interretation of the relevat
law. There are lawyers in three cases but not in two. The evidence of departre is close to
unequivocal in three cases, meets the preponderance standard in another one, C-X-, and fails to
be show by a preponderance in aoter, M-L-S-M-. In all but M-L-S-M- a good reason is
shown fr leaving prior to getting an order fom te court, and in two, F-I- ad M-L-S-M-, the
court may be partially at fult fr not scheduling an emegency heaing soon enough to
accommodate the fcts of the case. In most, possibly all, a efort was made to request
perission or infr the court prior to depaure. In one the respondent may have mental heath
issues. Te several technical requirements fr prospective voluta depare ae substantially
met i each case, wth expected vaations in those cases where evidence shows the depaure has
already taen place.
2
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
B. Sum a of the Court's Decision
Out-of-the-ordina things happen in courts as in life, and courts routinely address
emergencies, unexpected occurences, ad exceptional sitatons. If a respondent i immigation
court precipitously leaves the US -- a act not entrely at odds with DHS's interests, since its
accomplishes DHS's puose in iitiating te proceeding -- a IJ must cernly have discreton to
inquire ito the reasons and circumstances, especially i that person is urepresented and may be
uder the impression that he or she is doing te goverent a fvor by packing up ad leaving as
asked (or ordered) to. Te immigation court should not assume the worst when people fllow
unorthodox procedures, but should inquire as to why.
Immigation policy fvors voluntary depaure, which saves the goverent money, time
ad resouces, and in t provides a beneft to individuals who comply. It is never automatic,
but neithe is there any indication that exceptional circumstances should automatically bar it.
The real issue here is about tming. If the cour could have allowed a person to
voluntily depa befre the actual depaure, ca it do so afer deparure i the qualifcations are
equally evident? From its inception, the Board has embraced the equitable concept of ganting
relief mme pro tune, "now fr then, 11 as an appropriate exercise of the Attorey General's
auority. In Matter of L-, I l&N Dec. 1 (BIA, A.G 1940), te ver fst case decided by te
Board unde the delegated authort of the Attorey General, te Attorey Genera fund that it
would be capricious to conclude that "the technical fr of the proceedings" alone should
deterine te result, ad instucted tat discretionar reJief in deporation proceedings may relate
back to the time when te person was eligible fr it (when coming back into te US) but did not
have te opporunity to request it. Id. at 5.
In what fllows the cou holds that it has autorit to grat voluntary depare as of te
time when respondent was still in the US. Viewed as efective at an earlier date, such an order
renders later hearings moot -- "unschedules" them as it were -- so that non-appeaance at such a
now-non-scheduled hearing does not generate the in absentia order of removal under IA
240(b)(5)(A) that DHS seeks. Substantive justice is done, both paies are protected, ad the
problem with timing is corrected by a long-estblished equitable device. The respondent who
deseres it is a orded the relief oterwise available, ad the goverent has te opportnit to
prosecute the allegations and charges to completion. I fct, if the court makes the voluntay
depae period expire prior to the heaing at whch the nune pro tune order is issued (ad there
appeas no reason not to), the goverent also has an immediately enorceable fnal order of
removal if the respondent should still be in te US.
There is no specifc precedent fr such an order, but that is not a ba to the court's
exercising such authority. It is a fair ad compassionate exercise of judgment, something
expected of cours, and "consistent with applicable law ..M " 8 CFR 1240.1 (a)(l)(iv).
3
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
C. An Exercise of Judgent in Each Case Results in Apoprately Varied Outcomes.
Applying the general law to the specifc fcts of each case leads to a variet of fnal
orders here. Te court gts volunty depaure nunc pro tune in thee of te cases. The ver
power to exercise discretion entails the power to grant or deny. IS v. Abudu, 485 US 94, 108
(1 988). I one of these cases (M-L-S-M-) the court fnds te evidence falls short of showing te
respondent has actualy lef te US. I another (R-C-H-), the court uequivocaly fnds te
respondent had a good reason to leave the US befre a scheduled heaing (ad is therefre not
subject to the fve-year bar to fture iadmissibilit under IA Sec IA 212(a){6)() fr failure
to attend the hearing) but struggles longer with the separate issue of voluntar depaure under a
application of te conventiona voluntary depare stadards. In still aoter case (V-D-), te
paies agee to terination, ad the cour wll gant that rather than voluntay depare,
afn ing tat it power to do so is predicated on te sae ralistic reading of the mandator
removal clause in IA240(b)(5)(A) as the power to gant volutary deparre in te other cases -
- i.e. that 240(b)(5)(A) must not be read i isolation to madate removal even i caes where
another provision of te law should take precedence, but must be read in harony wit te Act
ad regulations a a whole.
I. FACTS IN T FIVE CASES
F-I- is a frt-six year old man fom Indonesia, who was admitted to the United States
Januar 27, 2001 as a nonimmigant visitor. He was charged as an overstay under IA
237(a)(l )(B) and conceded removability. He applied fr asylum and had his case consolidated
with tat of his wife. With a merits hearng scheduled fr August 25, 2010 he fled a written
motion fr volunt deparure on March 31 , 2010, befre a individual heang had been held,
because his mother had an exteme medical emergency i Indonesia By wrtten response DHS
opposed because the motion lacked a adavit signed by respondent himself. A aended
motion wa fle April 27, 201 0, with an afdavit withdrawing his asylum appliction, a
statement showing he understood what volunta depaure entails ad his intention to leave
April 29, ad a copy of a receipt fr his e-ticket fr April 29. Through counsel he later submitted
hs boarding pass showing actual depaure on that date. Unown to him, however, his mother
died the day befre, on April 28, and he later submitted the death cerifcate. On June 1, 2010,
hs wf, still in te US, appeared befre the court and credibly explained the circumsces of
his departure. She requested voluntar departue herself to join him. The cou ganted it, with
DHS ageement, but DHS still opposed the sae rmedy fr her husband nunc pro tune. F-I- has
not been convicted of any crimes.
B. R-C-H-
R-C-H- is a frt-nine year old ma fom Costa Rica charged in a NTA dated November
1 7, 2006 with removabilit uder INA 212(a)(6)(A)(i) fr being present without admission or
4
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
parole, tough he himself sought a replacement 1-94 fom DHS to show that he was admited
July 1, 2002 with a visitor's visa. He admitted alienage and removabilit nonetheless, as a
overstay. He came into DHS custody while a criminal case was pending and the removal
proceeding wa postponed pending its outcome.
On November 13, 2008, he depaed volutarily to Costa Rica, as his mother, who had
been seriously ill, died November 8, 2008. Unable to ret of couse, he consequenty missed
his next maste calendar hearing scheduled fr Jaua 6, 2009. Tough cousel R-C-H- later
submited documentary coroboration of his deparure, including a short-term tavel document
issued by the Costa Rcan consulate in New York just prior to his depare, a copy of his arline
ticket together with an itinerar fom a tavel agency, ad a letter fom the Costa Rica
goverent's General Directorate of Migaton showng his entr into tat count on November
13, 2008. He also substantiated te reason fr his precipitous departure with his moter's death
certifcate. DHS also presented a Form 1-210 received fom te US consulate i San Jose
verifing his depaure on November 13, 2008 as he alleged.
R-C-H-'s fther is a United States citizen, who h made an applicaton fr residence fr
h. His attorey arues that removing R-C-H- in absentia may freclose him fom seekng
benefts fom his fter's status, which could be especially iportant to h in light of his
mother's death. O Febrar 15, 2011, DHS fled a writen motion requestng tat the court
remove R-C-H- in absentia, renewed on May 3, 2011. DHS also opposes a gat of volunta
deparure on the merits, arguing that respondent does not deserve a fvorable exercise of
discretion because he has been convicted of two minor crimes (non-removable ofenses).
2
C. M-L-S-M-
M-L-S-M- is a sixt-nine-year-old woman fom Colombia, admitted to the US December
6, 1995 as a ponimmigrant visitor fr pleasure, and charged i a NTA dated Februar 14, 2010
as an overstay under INA 237(a)(l)(B). She has not been represented in this proceeding and
never appeared. On July 20, 2010 the cour mailed her a notce setting a master calendar hearing
October 12, 2010. Ten on September 7 the cout received a letter fom her asking that her
hearing be moved to September 14, 2010 because she wanted to "sign my voluntar deparue
and leave fom this count in the middle of October." She did not say why she wanted to leave.
Te time was too short to re-set the case fr less than a week later, but the cour did re-set it fr
October I, well befre her planned depae i the "middle of October." She did not appe at
the October 1 hearing. Given her letter the court did not order her removed then but postoned
the case to July 19, 2011, sending notice to her last address. On that date, in her absence, the
court discussed M-L-S-M-'s letter with DHS counsel, who agreed that it constituted a request fr
O November 13, 2006, R-C-H- had a criminal matter dismissed due to the speedy tial provisions. On June 20,
2007, R-C-H was convicted of violating New York State Penal Law 215.50 (Criminal Contempt in te second
degee, a Class A Misdemeanor). He was sentenced to six months imprisonment, a year conditional discharge, and
imposition of a fve-year order of protection. He pied guilt to NY Penal Law 240.20 (Disorderly Conduct) on
Januar I, 2008 and paid a twent-fve-dollar fne.
5
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
e
volunta depare. But OHS maintained that the idea of the court gating it nunc pro tue
instead of a mandator order of removal i absentia was "too fafetched.
lf
D. C-X-
C-X- is a nineteen-year-old man fom China, who cae t the US near Nogales, Arzona,
without admission or paole November 27, 2009. He was aested by DHS te same day and
chared under IA212(a)(6)(A)(i). On Januy 7, 2010, befre the immigrtion cour i San
Diego and represented by counsel, he admitted the allegations in the NTA ad conceded
removabilit. Venue was changed to New York, where he was no longer represented.
A few days befre his August 10, 2010 scheduled heang C-X- cae to the cou with
aother young ma who identfed himself as his cousi. C-X- was not scheduled fr a hearing
tat day. He cae to infor the court, throug the cousin and in the presence of the OHS
attorey assigned that day, that he wanted to retu to China voluntarily and had already bought a
tcket, which he had with him. The cousin also said C-X- had mental problems, ad it appeaed
to te court that tat may be te case. The court was not able to hea C-X-'s case frally that
day, nor did DHS have its fle accessible ten. A fw days later at his scheduled hearng August
10 he did not appear, nor did the cousin, and te cou has no fer inforation about h.
E. V-D-
V-D- is a twent-three yea old woma fom Haiti who was admitted t te United States
at Miami, Florida August 25, 2004 at 15 as a B-2 visitor fr a yea. Her father lef her and her
mother in 2005 and died i Haiti fve months later. Her mother lef in 2006 ad died in Hait that
yea, leaving 17-year-old V-D- in the care of her godmother. She contiued in school, was fund
dependent on te Family Court, gaduated fom high school, studied as a non-maticulated
student at SUNY-Bufalo, and was arrested by DHS on a bu trip back to New York Cit
December 13, 2007 afer her completing her frst semester of 15 credits. DHS chaged her as an
overstay under INA 237(a)(l )(B). At a master calendar heang V-D- admitted all of the fctual
allegations contained in te NTA and conceded removability as chaged.
Despite continued prima facie eligibility fr special immigrant juvenile stats she decided
to go to Canada in October 2008 where she had relatives where she could sta over, fel loved,
secure, and supported. On June 10, 2009, prior to another master calendar hearing, V-D-,
through counsel, submitted a wrtten motion fr volunta depae, admiistative closue or
terination of proceedings. She herself would seek "humanitarian asylum" there and submitted a
"Canadian Refgee Protection Claimant" document. The court re-scheduled the case and on May
2, 2011 DHS fled a written motion requesting the court to remove V-D- in absentia. Afer that,
respondent presented a Form 1-392, "Notifcation of Deaure of Alien (Bonded)" siged by US
Consul Scott G Feeken showing she appeared at the U.S. consulate in Toronto on August 4, 2011
with proof that she lef the US at Bufalo, New York October 7, 2008.0n August 8, 2011, in
6
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
response to this proof, DHS chaged its mind and fled a motion to terinate proceedings. V-D
has not been convicted of ay crimes.
IV. FINDIGS OF FACT
A. In General
Some fndings are the same in each case so they will be made jointly. Fist, each of these
respondents is credible. None shows any sigs of duplicit or fbrication in any of teir
statements or evidence. Each has also acted in good fait in his or her relation with the court.
Some reported decisions, not directly relevant here (ecause they deal with a request fr
terination or to withdrw an application fr admission rather than voluntm depa nunc pro
tun) decr attempt to 11defat11 the goverent's jurisdiction by leaving te count while te
case is going on. Mater of Luis, 22 I&N Dec. 747, 752 (IA 1 999); Mater o/Vargas-Molna,
13 I&N Dec. 651, 652(IA 1 971 ).That is emphatcally not tue fr ay of tese respondents.
Each has been respectfl of the court's process ad authorit, and has submitted to it by efors to
seek perission prior to departing, or by going to geat lenghs aer deparg to infor the court
the details surounding tei departure, or both.
Te evidence in each cae except M-L-S-M-'s shows that the person who lef had a good,
understandable reason fr leaving when they did. Some of the cases, like 1-F-, whose mother
died while he was waiting fr a court date, and M-L-S-M- and C-X-, whose requests fr a
earlier hearing date the court did not accommodate, show that the Court h responsibilities to
people befre it that it simply may not be able to meet on short notice. Notwithstanding the
genuine eforts by te court to be as responsive a possible to immediate needs expressed by te
public, when emergencies happen te court, like the respondents, may be limited by its ability to
act in the circumstances.
I fnd as fct the allegations each has made about the reasons fr leaving where given, the
truth of each respondent's intentions to leave when expressed prospectively, and te fact of their
actual depare in the three cases where we have an explicit claim afer the fact to have lef te
US. (C-X-'s ad M-L-S-M-'s cases do not include such a claim, ad are dealt with below.) The
evidence of depaure is clear ad convincing in the cases ofl-F- (afdavit, airline ticket
presented befre departure, boarding pass presented aferds, his wif's credible testimony, ad
the circumstances demonstating the tut of his stated motve fr leaving -- his mothers illness,
then deat -- showing deparure fom the US on or about April 29, 201 0), R-C-H- (airline ticket
and a tempor travel document showing intention to depart, proof fom Costa Rica
goverent of his entry to that country and fr 1-210 showing the US consulate's verifcaton of
his depaure, and coroboration of his motives fr leaving -- deat of his mother -- showing that
he lef the US on or about November 13, 2008), and V-D- (the evidence cited above, leading
DHS to move to terinate her case).
B. I Specifc Caes
7
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
I. M-L-S-M-
The cou has only one comunication fom M-L-S-M, the letter quoted above stating a
pla to leave in mid-October. The court mailed a heang notice to the address fom which her
letter came, but she did not respond, either in writing or by appeag. She did not wite again
later to say she had lef the US. Given her intenton to leave in mid-October and her un-availed
opporunity to appea in court October l, her long time (15 yeas) in the US prior to
commencement of proceedings, and her failure to state any reason fr leaving, the evidence is
insufcient to show that she actally lef the US. It is not the case, however, tat the evidence
positively shows she did not leave. I simply fnd the evidence does not preonderate to show
departue.
2. C-X-
I fd it likely that C-X- lef as he said he was going to. He had complied with the cout
procedures when arested along the Southwest border, including hiing a lawyer, adttng
removabilit, and changing venue. He did not hire a lawyer in New York, appaently because he
wa planning to leave te US ayway, but brought someone to court to communcate fr hi. He
bougt a airline ticket ad took the time and efort to come to court to show it ad explain his
sitation prior to his intended depature. His ver purose in coming to court was to tell te
judge he would be leaving befre the scheduled hearing date. He had not been in te US long,
and his appearance in court lef the impression that he did not fel at home in the US afer
arving, and, mentally healthy or not, prefrred to go back to his home country.
The court's administrative experience tells us that if he did indee intended to stay in te
US he would have fund aple availability of help and advice fom lawyers, tavel agents, ad
others in the Chinese comunity here in New York. Even if he has no valid claim, legal help is
available, since we hear many such claims that are not at all credible, yet the process of decidig
them results in the ability to remai in the US fr years, with employment authoriztion to boot.
Even people ordered deported to China 10 or more yeas ago still come to our atention with
motions to reopen, or as spouses in cases of people with pending applications. It is clea tat
even the theat of a fnal order of removal does not necessarily deter a person fom remaining.
His claimed mental state was not corroborated, nor did the court conduct any examination, ad
there exists the possibility that the representations were not te. But te court is more inclined
to fllow the impressions it receive seeing him than these speculations, especially because he
could win the chance to stay in the US i fact without goig throug the trouble he did. The
court fnds, then, that he had a genuine intention to ]eave, and to do so quickly, secifcally
befre he had to go to court, ad that the evidence preponderates to show he did therefre leve
prior to the scheduled heang.
8
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
V. THE USUAL PRACTICE I CASES LI THESE
The court sees may more cases of people leaving the US befre a scheduled heang tha
just tese fve. Most ae cases unlikely to reach the Boad because neiter pa appeals. May
are represented, some ae not. Sometimes the inforation at the missed heang is very explicit
and clea and documented. More ofen it is not Ofen an atorey has only second-had
infration or rmors about the person's depaure, reported fom a family member. Sometimes
lawers do not want to send any more time on the case, apparently kowing they will not be
paid fr their efors, ad may not oppose an order of removal i absentia. Sometmes a faly
member appeas to report te circumstances directly to the court, or the atorey has spoken in
detl with a faly member. And many people simply do not wat or seek volunty depaure
even though they have lef, because it makes no diference to them because they do not intend to
ret.
I general the usual practice is fr the cour either to order the person deored in absentia
fr falure to appea, or fr OHS and/or the respondent to move to terate. Quite ofen neither
course is fllowed immediately, because the depaed respondent's family member or atorey
may seek an opportnit to prove to OHS that the person has in fc lef ad, deeding on the
fct and the paicula goverent attorey ad respondent's attorey, there may be efors to
prove depare to DHS's satisfcon. DHS ofen, bu not always, fcilitates the provision of
frs and inctions fr such a respondent (Cf R-C-H-'s case, where the OHS attorey
apparently gave respondent's attorey a fr by which respondent could prove his depae by
getting it flled out at the US consulate in San Jose.)Postponing te case fr the gathering of such
evidence is ofen neither problematic nor controversial. (DHS opposed the frst postonement in
V-D-s case but not subsequent ones.) Allowing such an opportt does not commit DHS one
way or te other to any pacular course of action later when fher evidence may come in.
Sometimes a OHS attorey will fnd the evidence given at the missed heang sufcient to
show depae and move to terminate ten ad there. Oter times, the inforal gatering of
evidence goes on, the parties negotiate, and sometimes OHS moves fr terination, other times
it opposes it ad moves fr an in absentia order of removal, as happened in F-1- ad R-C-H- and
V-D-.Some DHS atoreys may agee to terinate and oters not, or one attorey may agee in
one case but not in another similar one. Sometimes the DHS attorey will require a specifc te
of evidence B a siged ad sealed docuent fom the US consulate abroad, but even when such a
document is obtaned (as in R-C-H-'s case) it is not necessaly deemed sufcient to cause
termination.
DHS, respondents, and the cour all regard DHS a the sole authorit wth the power to
determine whether any given individual who depas voluntly prior to a scheduled heang
should be ordere removed or not. Where judges have acted to terminate such cases without the
goveent's consent, the Board has held tat a respondent does not have the power to
unilaterally "compel termination of deportation proceedings which have been commenced aganst
him merely by efecting a departure," Matter ofBrown, 18 I&N Dec. 324, 325 (1982), or, once
9
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
having come under the court's jurisdiction in an exclusion proceeding, to "defeat tis jurisdiction
by wthdrawing his application fr admission," Matter of Vargas-Molina, 13 I&N Dec. 651,
652(BIA 1971).Thus, even if termination may legitimately protect a worty respondent's interest
in not having a deporation order entered against him or her, the goveent's interest in seeing
the case to completion ad obtainng a fmal enforceable order invariably ovedes te
respondet's interest in not being ordered removed. Tus, when the sole choice is beteen
terination ad a in absentia order, there must be a winner and a loser, and the winner is always
the goverent, te loser te respondent.
In reported cases recogizng te goverrent's interest in cases like these the Board has
not looked fvorably on efors to avoid a deportation order by terminating te case. When the
only to alteratives ae terination ad a in absentia order the tendency to t of only a
single winner averts even a acknowledgment tat te individual respondents may also have
interests ever bit as legitimate as te goverent's and motves ever bit as pure."[1he
conferment of such an extaordinar power [on the individual who leaves] would have toubling
implictions, as it would allow an alien to avoid a potentially adverse rling by this Board by
defeatg the Service's abilit to prosecute a appeal." Luis-Rodiguez, 22 I&N Dec. 747, 752
(BIA 1999)."As long as te Service chooses to prosecute the applict's proceedings to a
conclusion, the Immigration Judges and this Board must orer the applicant excluded and
deorted if the evidence suppors such a fnding." Matter a/Singh, 21 I&N Dec. 427, 435 (BIA
1996)."So long as the enforcment ofcials of the Service choose to initate proceedings agains
a alien and to prosecute those proceedings to a conclusion, the immigaton judge and te Board
must order deportation if the evidence suppors a fnding of deporability on te ground chaed."
Matter o/Yazdani, 17 I & N Dec. 626, 630 (IA 1981) Says the Seventh Circuit, "Immigation
rules give enfrcement ofcials, not immigation judges or the BIA te discretion to terinate
removal proceedings. See 8 C.F.R. 1239.2; 8 C.F.R.239.2." Ahmedv Gonales, 432 F.3d 709,
711 (7th Cir. 2005).
3
When DHS exercises its discreton to terminate, it is apparently motivated by, among
other things, an understanding and compassion fr a person who may face exigencies that a busy
cour or DHS cannot always accommodate. It probably also recognizes that, fankly, the person'
s deparre gives DHS most or all of what it sought in sering the NTA, and did so at relatively
little expense to DHS. It recognizes that the respondent can win something without DHS losing.
3 Though cases do not report that administrative closure has been used fr this purpose, the logic of using such a
procedure to protect a respondent while prejudicing the goverment sufers the same debilities as terination. In
Matter of Am;co, 19 I&N Dec. 652 (BIA 1988), Matter of Lopez-Barios, 20 I&N Dec. 203 (BIA 1990), and Mate
of Munoz-Santos, 20 I&N Dec. 205 (BIA 1 990) the person subject to proceedings had filed to appear, and the
immigration judge administatively closed the case rather than proceeding to a hearing in abentia. Administtive
closure had a detimental efect on te IS because "the respondent [was] able to avoid an order regarding her
deporabilit," Lope-Barrios, 20 I&N at 204, notwithstanding that the case was procedurally ripe fr a decision on
deporability. Nothing in the BIAs more recent decision in Matter of Avetian, 25 I&N Dec. 688 (BIA 2012),
should change that result: administative closure is not an appropriate response when someone has lef the count
during proceedings.
IO
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
4
The concer about conferring blanket power on ever respondent as a matter of rigt to
override te goveent's interests is obviously legitimate, as can be seen i cases where OHS
seeks to deport a person fr a serious crime or as a genuine terorist threat, as addressed in Matter
ofLuis, supra. But a blankt rule may not be necessar at al. What motivats te court's
decision in these fve cases is the view that when judgment is exercised, and exercised on the
same established principles as it is in other cases, we may fee ourselves fom te assumption
that one party must win and the other lose, which appears nearly inevitable when the ony choices
are termination or in absentia removal.
VI. ISSUES
The fs issue is whether a immigation court has any power whatsoever to gat
voluntary depaure nune pro tune when no statute or regulation explicitly provides fr it, and a
precedent has not yet been established. OHS has argued in several of these cases tat te lack of
explicit authorit to meas te court is prohibited fom doing it. By itself ths is obviously not a
valid argument if the power fllows fom established law, but it is important to address it
explicitly, as will be done in section VI below, to avoid an assumpton to te conty creeping
in and carring the day.
The Board recently reminded us of the two principles a immigation judge should keep
in mind when addressing new legal situations: (1) to exercise judgent, and (2) to remain
consistent with established law: "I deciding individua cases, a Immigation Judge must
exercise his or her independent judgment and discretion ad may tae ay action consistent wit
the Act and regulations that is appropriate and necessa fr the dispositon of such cases.8
C.F.R. 1003. lO(b)."Matter ofAvetisyan, 25 I&N Dec. 688, 691 (BIA2011).The whole point in
examining the circumstances of a respondent's departure prior to a scheduled heaing and
determining whether voluntar depature should be ganted is to exercise judgent where it has
not been exercised befre, in order to consider interests of individual respondents that have been
igored in the case law until now. So te Board's frst criterion is met without frther
elaboration.
The other issue is whether granting voluntary departure nune pro tune is consistent with
applicable law. Te court's action here implicates fur well-established areas of law, which will
be addressed in t below: voluntar depatue (section V); a court's power to address routine
procedural matters like scheduling, timing, and exceptional circumstaces (section I); nune pro
tune action (section X); ad in absentia orders (section X).
VII. ADDRESSING THE FACT THAT THIS IS A NEW APPROACH
OHS has opposed the court's gantng voluntar departure nune pro tune not because
DHS will be prejudiced, and not because the policy is not a good one, but because the regulations
do not gt verbatm authorit to the cout to do so. On this point OHS is literally corect, but
11
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
that is only the frst obseration, not te last, in interpreting the statutor and reglator scheme
as a whole.
Law evolves, like oter living things, tough te stochastc process of tang a and
fllowing the feedback fom each successive ta and eror. The successive guesses ae not
rdom but ae aimed at accomplishing something based on experience. ''New" procedus, when
successf, tend to be nothing more than a application of old and tested procedures in a new
situaion, not really much of a depare fom the proven and successl consensus (i.e. they ae
consistent with already-existing law).
Applyng this trial-ad-eror process this cour has ted both terinaton ad in absentia
ordes of removal in the pat ad fund that neither meets the needs of both paes, neiter rally
works. So we will t somethng else. If te Boad allows it, voluta deaure nunc pro tune
ca be tried more broadly, revealing stengths which will eventually preval ad weaesses
which will be corected. This seems to be aother way of saying what the Boad said in
Avetian, that a cou should exercise judgent (employ the feedback fom pat exence to
respond to present needs) and tae an acton (theoreticaly open-ended, emphaizing inovaton)
consistent with establised law and practice (i.e. still anchored to that vast body of prnciples that
should not suddenly change).
Over the yeas immigration law has gown when the Boad and immigation cous,
applying their established experience to new situations, have ten creative action not
specifcally autorzed by law or regulation, but stll consistent with established law ad prctice.
They have flled gaps lef open in the statute and regulations wit signifcat and ultimately
successfl solutions to problems that begged fr solutions. Among tem are these power:
-To change venue, Matter o/Seren, 15 I&N Dec. 590, 591(BI1976) (ormer 8 CFR
242.S (a) "gants the immigation judge the power to take such action as 'may be
apprpriate to the disposition of the case.' Encompassed within that gat of authorty is
the power to rule on a moton to chage venue");
- to administatively close cases, Matter of Avetisan, 25 I&N Dec. 688, 690 (BI
2011) ("a procedural tool created [by immigration cours and the Boad] fr the
convenience of the immigation cous and the Boad");
- to withdraw an application fr admission to the US, Matter of Vargas-Molina, 13
I&N Dec. 651, 652-3 (BI 1971) ("Te regulations and statutes do not provide fr
the situation befre us ... We therefre rule that an applicant fr admission ... may
be permited to withdraw his application if justice may best be sered by
peritting te withdrawal");
- to gat nunc pro tune relief itself, Matter of T6 I&N Dec. 410, 413-14 (BIA
1954) ("It has long been the administative practice to exercise the discreton
12
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
9
permited by the fregoing provisions of law [discretiona waiver fr CIMT]
nunc pro tune, where complete justice to an alien dictates such extaordinar
action11); and
- to gat voluntary depaure itself, Dada v Muke, 554 US 1, 8 (2008)
("Volunta depae was originally developed by administative ofcers, in te
absence of a specifc mandate in the statute. The practice was fr codifed in the
Alien Regstation Act of 1940.11[lteral quotation maks and citations omitted]).
The power to come up with new rles continues without a specifc pre-autorizng
regulaton, pursuat to the court's and Board's general authority to "take any other acton
consistent wit applicable law and regulation as may be appropriate,11 8 CFR 1240. l(a)(l ){iv),
Avetisan, supra, and te court's "broad overall authorit to conduct removal proceedigs."
Matter ofHerrera Del Orden, 25 I&N Dec. 589, 593 (BIA 2011). Tat the approach suggested
here is "new" actally fts into a old, honorable, and well-established practice.
VI. VOLUNTARYDEPARTURE
A. Volut Deparure i General
Immigation law has long fvored and encouraged voluntay departe because it tends to
beneft both paies." Voluntary departre is discretionary relief that allows certain fvored aliens
to leave the country wllingly. It benefts the Goveren by, e.g., expediting the departure
process ad avoiding deporation expenses, and benefts the alien by, e.g., fcilitating
readission.11 Dada v Mukaey, 554 U.S. 1, 2 (2008).It is a minor frm of relief regading which
the two parties can sometimes reach the sor of negotiated compromise tat ofen occurs in other
areas of law, "an agreed-upon exchange of benefts, much like a setlement ageement,11 id. at 19.
These benefts are not necessarily of equal imporance to all respondents. I our
experience not everone leaving the US hopes to return in the fture, and of those who do, not all
want voluntary deparre. A person may be ineligible fr fture re-admission fr reasons other
than a deportation, such as an earlier unlawfl lresence in the United States under INA
212(a)(9)(B)(i), and be ineligible fr a waiver, in which case voluntary departue gives no added
beneft.
Volunta departure may also have its drawbacks of its own fr individuals who accept it:
they open themselves to penalties that would not be imposed if they were simply depored.
Failing to depa by the scheduled date may subject the person to a civil penalty (cuently
between $1,000 and $5,000) ad make him or her ineligible fr the next ten years fr cacellation
of removal, any change or adjustment of status, or volunta departure again. IA
A waiver is available only if the applicant has a parent or spouse who is a US citizen or LPR. See IA
212(a)(9)(B)(v).
13
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
240B(d)(l )Te Court even lacks discretion to gant a excepton to the ten-year ineligibilit
perod. Matter o/Zmiewsk, 24 I&N Dec. 87, 93 (BIA2007).
Finally, i ever case where voluntary depaure is grnted, alteative orde of
remova is imposed a well, made to apply as a condition subsequent if ad only if te person
fails to leave by the deadline imposed.
B. Legal Reguirements
While the fnal decision to gant or deny voluntay deparure is a discretona asessment
made in each individual case, the statute ad regulatons provide both procedual ad substtive
requirement as well, and these in t var depending on whether the individual asks fr it
"prior to completion of a removal proceeding," IA240B(a)(l) or "at the conclusion of a
proceeding under secton 240," INA240B(b). See, generally, Matter ofArguelles, 22 I&N Dec.
811, 813-17 (BIA 1999).
Prior to conclusion of a proceeding the only substtive requirement is tat the person not
be convicted of an "aggravated flony" or be deporable fr securt-related gouds. Good
morl chaacter and the fnancial means to depar are not required. But a applicat must sill
demonstate that she wa ts a fvorable exercise of discreton. Arguelles at 816-17.
Procedurally it is only necessar to concede removabilit, to seek no other additional rlief, ad
to waive appeal of all issues, and 120 days ca be gated. 8 CFR 1240.26()(l)(i).
When requested at the conclusion of a proceeding it is also necessar to show that the
person ha been in the US a year prior to initiation of removal proceedings, has been of good
moral character fr fve years, and has the meas and intention to leave the US befre the
expiration period, fr which presentation of a valid passpor is a necessary item of proof. 8 CFR
1240 .26( c )( 1 ). A maximum of 60 days may be granted. A bond may be imposed in either case,
but a minimum bond of $500 is required when the request is made at the conclusion of a
proceeding "to ensure that the alien depars within the time specifed." 8 CFR 1240.26(c)(3)(i).
C. How Can te Technical Reguirements Be Met If the Person Has Already Lef?
To answer this question we must read the regulations in the same way te Supreme Court
counsels that we read statutes. Courts must not "look merely to a paricular clause but should
consider each provision "in connection with ... the whole statute." Kokoszk v Belord, 417 U.S.
642, 650 (1974) (citation and interal quotation maks omitted); see also Gozlon-Peretz v United
Sates, 498 U.S. 395, 407 (1991) ("I deterining the meaing of te statute, we look not ony to
te paicular statutory language, but to the desig of the statute as a whole and to its object and
policy" (citations ad quotaton marks omitted)); United Sates v Heirs of Boisdore, 8 How. 113,
122 (1850) ("[e must not be guided by a single sentence or member of a sentence, bu look to
the provisions of the whole law, and to its object and policy.'').See also Dada, supra, at 16.
14
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
The Supreme Court has exaed the very statute on whch the regulations at issue ae
based, ad made clear tat the purpose is to help en that people wthout te rigt to stay in
the US temporaily pursut to a volunta depaure order do in fact leave rather ta remain
indefnitely. The cu ent structure, passed in 1 996, addressed in pa te "critcis of
imigration ofcials who had expressed fstration that aliens ganted volutary depae were
permited to continue their illegal presence in the United States fr months, and even yes,"
Dad at 9 (citation ad interal quotes omitted, emphasis added).Leaving, leaving quickly, ad
savig te goverent money are all goals:
From the Goverent's stdpoint, the alien's ageement to leave
voluntarily expedites the depaure process ad avoids the expense
of deportaton B including procuring necessa document ad
detaing the alien pending deportation. Te Goverent also
eliminates some of the costs ad budens asociated with litigation
over the depare. With the appaent purose of asuring that the
Government attains the benefts it seek, the Act imposes limit on
te time fr volut depa . . . ad prohibits judicial review
of volunta depa decisions, see 8 U.S.C. 1229c(f ad
1 252(a)(2)(B)(i).
Dad at 1 1 (emphasis added). Te Act also aims to beneft individuals otherwise subject to
deportation.
He or she avoids extended detention pending completion of travel
arangements; is allowed to choose when to depart (subject to
certin constaints); and can select the count of destination. And,
of great importance, by depaing voluntarily te alien fcilitates
the possibility of readmission . . . . Under te curent Act, a alien
involuntarily removed fom the United States is ineligible fr
reamission fr a period of 5, 1 0, or 20 years, depending upon the
circumstaces of removal. . . . An alien who maes a timely
depare under a grat of voluntary depae, on the other hand,
is not subject to these restctions.
Id. (emphais added).Thus, volunta depae is intended to beneft both paies in a way that
deportation would beneft neither of them. Bot paies can win, rather ta frcing a situation
where one wins and te other necessaly loses. Both can have their interests protected ad
beneft the other i the process." Volunta depaure, under the curent stucture, allows the
Goverent and the alien to agee upon a quid pro quo. " Dada at 11. "Volunta depare is a
ageed-upon exchage of benefts, much like a setlement agreement." Id. at 1 9.
Te regulations fequently reiterate their specifc purose of procurng the individual's
depaure. When seeking volunta depaure at the conclusion of a proceeding the individual
15
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
must establish "by clear and convincing evidence that [he or she] has the means to depart the
United States and ha the intention to do so."8 CFR 1 240.26(c)( l)(iv) (emphasis added).Te
requirement to present a passport is to ascerain that it is "sufcient to assure l awfl entr into
the count to which the alien is departing. 118 CFR 1 240.26(c)(2), 8 CFR 1 240.26(b)(3)(i)
(emphasis added). The puose of a volutary depae bond is to "enure that the alien departs
within the te specife,"8 CFR 1 240.26(c)(3), 8 CFR 1240.26(b)(3)(i) (emphasis adde), and it
is retued when the person proves he or she "depart[ed] the United States prior to te expirtion
of the period ganted fr voluta departure.118 CFR 1 240.26(c)(2)(v) (emphasis added).An
immigation judge "may impose such conditions as he or she deems necessar to enure the
alien's timely departue fom the United States.1 1 8 CFR 1240.26(c)(3), 8 CFR 1240.26(b)(3)(i)
(emphasis added).And the rgt to appeal, which must be waved when voluntary depae is
ganted prior to completion of a proceeding, CFR 1 240.26(b)(l )(i)(D) in order to asure that the
depare is not furer postoned, occus automatically when a respondent actually departs fom
the county while an appeal is pending, since the "[d]eparture fom te United States . . . shall
consttute a withdrawal of the appeal, and the initial decision in the case shall be fn to te same
extent as though no appeal had been taken."8 CFR 1 003.4.
Wen a person has already deared the United Sttes befre the judge makes a
deterination whether to grant voluntary departe in lieu of frced removal at goverent
expense, the purpose of te technical requirements ha already been accomplished. Showing a
passport to prove eligibilit t enter aote county, paying a bond, waiving appeal, or being
subject to other conditions a judge may impose -- all these are moot when thei intended pwose
of guaranteeing actual deaure fom te US ha already been accomplished. Rather ta an
obstacle to granting voluntar departure, the already-accomplished departure of a respondent may
in fct fcilitate such a gant, since te purose of the regulations is so clearly met already. The
efort to prevent respondents fom 11continu[ing] their illegal presence in the United States fr
months, and even years" --one of te goals of the curent legal structure, according to the
Supreme Cou Dada at 9 -- is simply moot when the person has depared befre the order is
entered.
If there were a statutor or regulatory provision directly on point setting out requirements
fr a post-departre order of voluntar depaure (or prohibiting it) we would of couse fllow it.
But there is none. Since the purose of the statute and regulations is accomplished when
voluntar depature is made available to desering individuals who have already lef te country,
ad the plain text of the satute makes no explicit restricton making tat relief available only to
those who promise to leave i the fture, we should not assume that the statute intends to ignore
the benefts already bestowed on the goverent by a class of people who appear equally fvored
by the same law. See Costello v. INS, 376 U. S. 1 20, 1 27-1 28 (1 964) (counseling long hesitation
"befre adoptng a constucton of a statute which would, with respect to a entire class of aliens,
completely nullif a procedure so intrinsic a par of the legslative scheme. ")
The ironic conclusion is that what frst appears as an obstacle to flflling the technical
requirements fr voluntar departure -- the person's having departed already -- is in fct a souce
1 6
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
of confdence that the purpose fr which those technical requirements were created ha already
been flflled. The assuances required when people promise to leave ae fnally flflled only
when they do leave. But when people have aleady lef, the assuraces sought by the technical
regulations ae flflled without the need fr other assuraces.
The availability of voluntay departre to people suferng such circumstances ougt to be
seriously entertained.
D. Judgent and Discreton
Below where we apply law to fcts we will see how the principles outlined here a ect
each paticula case. That application of law t fct will be an exercise of judgent on the
cou's par. Reaons will be gven fr exercising it the way it is done. The point here is tat tis
aalysis of te law does not puror to dictate how a judge must decide ay pacula case, but
only opens the door to exercisig real judgent in te lives of people when appropriate. I these
days when news aicles express complaints that too ofen immigation laws dictate severe
consequences unwar antd by te specifc fcts, the constction of te law presented her is
intended to show that in this paticula type of situation where it has been assued tat judges
have no judgent to exercise, they in fact do. This is not intended to close the door to ayone's
circumstances but to open the door to a far consideration of exceptonal circustances just a Us
consider them in other contexts.
The solution ofered here difers substantially fom either an auomatic termiation of
proceedings or an automatic order of removal in all cases of a person who has voluntaly
depaed befre proceedings conclude, because it requires the exercise of judgent refered to in
Avetisyan.
IX. PROCEDURAL LAW APPLICABLE TO SCHEDULIG
TIG AND EXCEPTIONAL CICUMSTANCES
The type of problem to which the cour seeks to apply its nunc pro tune power here is one
that immigation cours are empowered to address, and do address, on a routine basis: problems
of disruptions to the ordinar scheduling of cases caused by emergencies, exceptiona situations
and erors, and te court's own limitations in dealing wit them.
A. When Plans Fail
Immigration judges ofen deal with disruptions and potential disruptions to orderly
planing. People get sick, mae last-minute motions, request accommodation to unfreseen
circustances, and make mistakes fr which they ask understanding. Immigation judges
exercise discretion in procedural matters on a daily basis to see tat paies are teated fairly in
both ordina and unusual circuces. When a individual or the goverent can ot appea
at a scheduled hearing because of an emergency or even a mere inconvenience, or can ot prepae
17
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
fr it in advace, or when the cou itself must postpone a case, the immigaton judge has a
ar ay of ord, non-controversial discretiona powers with which to address the proposed
change in plas. These include te power to schedule cases, 8 CFR 1 003 . 1 8( a), to postpone
heangs, 8 CFR 1 003. 1 8(b), 8 CFR 1240.6, to waive the oterise-required presence of a pa,
8 CFR 1 003.25(a), to gant continuances, 8 CFR 1 003.29, and to "otherise regulate te course
of the hearng," 8 CFR 1 240. l (c).
Such powers may aso be inherent in Congess's use of te word 'judge" to defne te
presiding ofcia in immigraton courts, IA 1 0l (b)(4), IA240(b)(l ), a does the Atorey
General in te regulations, e.g. 8 CFR 1 003. 1 2, 1 003. 1 4, 1 240. 1 , and elsewhere througout 8
CFR 1 003 and 1 240.Te ver name "judge" caries its own age-old meaning as a ofcial wit
certai inherent powers. I the same vein, the Atorey General's regulations consistenty use of
the acient word "court" to defne the frum in which removal proceedings tae place.(See, e.g.,
the heading to 8 CFR Subpa C, "Immigation Court," ad the numerous other refrences in 8
CFR 1 003 and 1 240. I addition, sometng simila to inherent judicial power is explicitly
delegated by the Attorey General to tese 'judges": "to take any oter acton consistent with
applicable law and regulations as may be appropriate. " 8 CFR 1 240. l (a)(iv).
B. Emerencies
Statutes, regulations and ce law explicitly requie judges to mae procedural judgments
about whether a emergency (or sometg like it) exists. These include "extaordna
circumstances" fr not fling a asylum applicaton witin a year of arrval in the US, INA
208(a)(2)(D), 8 USC 1 1 58(a)(2)(D), 8 CFR 1 208.4(a)(5); "exceptional circumstances" fr
missing a hearing when seekig to reopen an in absentia order, INA 240(b)(5)(C)(i), 8 USC
1 229a(b)(S)(C)(i); "truly exceptional circumstances" for exercising the "extaorina remedy" of
sua sponte reopening, Matter ofG-D-, 22 I&N Dec. 1 1 32, 1 1 33-34 (BIA 1 999), among others.
Judges must also exaine ad consider actual and potential hardship when individuals seek
substantive relief like suspension of deportation under frmer INA 244, cacellation of removal
fr non-residents, INA 240A{b)(l ), waivers under IA21 2(h), ad, generaly, other frms of
relief like waivers under frmer section 21 2( c) and cancellation of removal fr LPRs under INA
240A(a).
Immigation cours not only have te power to consider personal and family emergencies
when maing procedural decisions, but firess gives them the obligation to do so as well in
many circumstaces. To fail to exercise discretion when it is called fr may be an abuse of
judicial dut, even if a higher court would not judge how such discreton is exercised. Cf United
Sates ex rel. Accardi v. Shaughness, 347 U.S. 260, 268 (l 954)("It is imporant to emphaize
that we ae not here reviewing and reversing the manner in which discretion was exercised. I
such were the case we would be discussing the evidence in the record supportng or underining
te alien's claim to discretiona relief. Rather, we object to the Boad's alleged failure to exercise
its ow discretion, contra to exisng valid regulations.")IfR-C-H-, F-I-, or V-D- had missed a
heang but not lef the country, ad gave the same reasons tey give here, immigation judges
1 8
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
and the Board would not have ay hesitacy whatever about ting those hardships into
consideration in ting to be procedurally fair, whether the hadships fr te basis fr a motion
to continue beforehand, a motion to waive their presence at te heaing, or a motion to reopen
after such a heaing. Judges must take teir hardships into consideration when their loved ones'
lif-ad-deat situations occu inside the US, and there is notng i the regulatons tat jusfes
wholesale ignoring of the sae circumstances when their loved ones' toubles occur outide the
US. It is bot fir and logical to at ver least tak the same kind ofhardhip into account when it
occurs outside the US and occasions the same absence fom the hearing that such an emergency
would occasion inside the US. It is the close family relation and the lif-and-death nature of the
circumstances demanding te respondent's presence at teir loved one's side should invoke the
court's interest in faess in such circumstances.
The diference between missing a hearing because one's mother is dying in a hospital
uptown and a hospita in Costa Rica is that afer visiting the mother in Costa Rica it is not as easy
to come back to the postoned hearing. Given immigaton restriction, it is close to impossible.
The decision to visit a dying relative abroad is therefre much more momentous, much more
peraent in efect. But tat is not a reaon to igore it altogeter i assessing what to do about
the missed heaing.
C. Busy Cou Schedules
In two cases, C-X- ad M-L-S-M-, the motivation fr wating to leave befre a hearing is
not apparent. But in each of them, respondents made an efort to advance the hearing date. C-X
cae in person without a lawyer a fw days befre his hearing to talk wit the judge (and fund
the rigt one out of more than 25 here in New York) to inform that he wished to leave and to seek
whatever authoriztion te cou should give, but the court could not accommodate him frmally
that day because his case was not scheduled. M-L-S-M- sought to advance her hearing to within
about a week, an expectation not inconsistent with what the NTA leads respondents to believe is
possible, if not te nor. (See section X.A. below.) When the court saw her letter-motion of
September 7 askig to advance to September 1 4 (it was probably closer to September 1 4 than 7
by that time) it set te case fr October ! , judging that DHS would need more tan a week to
prepare but still accomodating her desire to leave in "mid-October. " F-1-, represented by
counsel, made a writen motion fr voluntar departure, which did not entail holding a hearing at
all if DHS agreed, but it did not, fr lack of an afdavit siged by him about his mother's lif
treatening illness. (Actually, a afdavit explaining te emergency was not necessa fr
voluntar departre, which ca obviously be granted when no emergency exists. Proving te
reasons fr wanting to depart is not even necessary. Nor is a swor statement a prerequisite t
advacing te case, thoug it may be usefl.)By the time he made his request more frally
acceptable ad the court set a date, his moter's condition deteriorated ad she died the day
befre te hearing.
If we explore the reasons these cases were not head befre the person lef, the cour's
ow limitations ae not to be excluded fom consideration. A immigation cou's schedule is
1 9
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
not always able to accommodate the genuine and legitimate needs of al the members of the
public when emergencies require quick action. But fa fom an excuse fr igoring such
exigencies, the court's limitations ae a practicality to take into consideration when assessing the
individual's rgt, at least i we take a cue fom the Supreme Court:
Weter an alien's moton [to reopen] wll be ajudicated wt te 60-day
statutory perod i all likelihood will depend on pue happece - naely, the
backlog of the pacula Board member to whom the motion is assigned. Cf.
United Sates v Wlson , 503 U.S. 329, 334 (1 992) (arbitay results ae 'not to be
presumed lightly').
Dada at 1 7-1 8.Similaly, "these practical litations must be tken into account" i applyig
volunta depature law to people eligible fr it but fr the cour's practical inability to
accommodate them. At a minimum, volunta departure should not be viewed a out the
question just because of the court's practical limitations.
D. Conclusion
Applicable law allows ad sometimes demads that imigaton judges schedule, re
schedule, ad postone caes, and waive the oterwise-requir presence of a pa when
emergencies, extaordinar circustaces, exceptional circuces, and even good cause
require. Tis is not new or profund. And when in some cases the cicumstces ae so exteme
that basic human decency calls fr a person's departure fom the US to attend to a loved one's
extreme needs or oter deeply flt human obligations, an immigration court is empowered to tae
those extraordina circumstancs into account in evaluating what procedure would be fir i
such a case.
Even in non-emergency situations, or situations in which the court is not infrmed why
the person wishes to leave soon, the court is still able to accommodate many people who ask fr
an earlier hearing date to leave the count voluntaly. But such cases a also subject to the
same limitations as emergency cases -- less time avalability and the need to accommodate the
other part and give notice to all, and some people's scheduling needs may not be met.
In practice, however, nunc pro tune authority is simply not necessar in most cases
because emergencies don't happen fequently and when they do the cou ofen accommodates
them befrehad. What makes these cases diferent fom most other emergencies dealt with by
te immigration court is that they necessitate adancing the case, which is generaly more
difcult fr a cou tha postoning a case. Fewer tme slots ae available in the short period
which ca accomodate the respondent's need and give notice to the goverent.
I the cou could respond immediately to all who need a quick response, especially those
fcing genuine emergencies, and if respondents in general knew or trusted tat te cour would
give an imediate response, the issue i fur of these fve caes (all but V-D-) would not have
20
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
arisen. Voluntay depaure would have been addressed according to timng generally expected
in the circumstaces. But te court cannot always act fast enough, ad respondents cannot
always wait fr it. So things happen out of order. Respondents leve "too soon." Te timing
gets thrown of. The next section addresses how immigaton cours have addressed such tming
problems since teir inception.
X. NUNC PRO TUC: TH POWER TO PRVENT TIMG ERRORS
FROM NEGATIG SUBSTANTI VE RIGHTS
A. Levig "Too Soon11
A simple characterization of the problem here is that the respondents all lef the United
States "to soon." That may in fct be the only problem. I tey had wated fr their next hering
and a cou order, each of them may well have been gatd volunta depaure as a routine,
non-contoversial conclusion to their case.
Te "too" in "too soon," however, reveals a assumption tat may not be tue -- tat
leaving befre a hearing is somehow breaking te rules. Congess set up the rules, and made
sure that te NTA comencing a removal proceeding gves people te most importnt
infration they need to kow about the proceeding -- tat it is a efort to "remove" them fom
the US, why the efort is made, that they have certain rights and obligations, ad that if they do
not go to cour they will be ordered removed anyway. IA 239(a)(l).
Two things about this notice should make us reticent to criticize those who leave when
they cannot get an earlier hearing date. First, it anounces that the heaing will not be held in
less than 1 0 days (so te respondent ca look fr a lawyer) "unless the alien requests i witing
an earlier hearing date," IA 239{b)(l ). This raises expectations, especially in those without
lawyers, that with the time it takes to make such a request, set a ealier heaing, and send out the
new hearing notices the court can usually re-set a cae in a day or two. That does not at all
accord with actua practice i our imigration court.
Second, the NA does not war people not to leave the US before going to court, or
prohibit them fom doing so. When an ordinary, reasonable, honest person reads such a notice,
what happens if they agee with the goverent that they are "subject to removal fom the United
States" and they leave? Is it possible fr a person to believe in complete good fait they should
leave and that by doing so they are obeying, even helping, the authorities who want them to
leave?
Tis question is importat not because it is directly relevant to an application of law to
these fcts but because answering may corect an assumption tat migt otherwise be made
that people who leave befre the court allows them to are ipso facto disobedient, untstworthy,
subjectively ting to "defeat" the DHS or the cour. That may be te in some cases, but it is not
true in all. To apply it generally or as a staring point is to misapply a assumption of fct as i it
21
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
..
were a presumption of law. It is not a presumption of law, so it must not be applied in the place
of specifc evidence i the record. It is certainly not self-evident that giving DHS what it asks fr
is rebellious or disobedient.
As fr the statute ad the rguations, the ony tng obvious about them on this point is
that they are silent about leaving while proceedings are pending. Tey give no explicit
authorization fr voluntary deparure nunc pro tune a DHS correctly points out, but neither do
they make any specifc prohibition against leaving the US while a case is pending. Tey say
nothing whatever about whether a person may only seek a voluntar departure order while i the
US. Experience shows that not all who wish to seek voluntary departure can always do so while
still in the US. Some people fce exceptiona circumstances preventg them fom doing so.
Tey ae no more tying to defat the cour or the DHS than those who must miss a hearng fr
simila emergencies tat do not tae them out of the US. It is equally important t inquire ad
lea about those people's emergencies, circumstances, hardships, motivations, ad teir good or
bad faith, in order to be responsive to them, rather ta to ignore teir situations or, worse, to
impose a prejudgent or stereotpe to judge them without the beneft of evidence.
B. Nunc Pro Tune Authorit
A good sum ar of nunc pro tune autority i imigation courts is given in a precedent
decision in this Cicuit, Edard v. IS, 393 F.3d 299, 308-09 (2d Cir. 2004):
Te equitable remedy of nunc pro tune (literally "now fr then")
relief has a long and distinguished history in the feld of
immigration law. For more tan sixt years, the Attorey General
and the Board of Immigration Appeals have recognized its
imporace in mitigating potentially harsh results of the
immigration laws. See Matter of L-, I I. & N. Dec. I (A.GI 940)
(holding, i the first reported I & N Decision, that a alien i
deportation proceedings could be awarded relief under the
predecessor statute to 21 2(c), because the Attorey General could
exercise his discretion nunc pro tune); see also Matter ofT-, 6 I. &
N. Dec. 41 0, 41 3 (BIA 1 954) (applyig te principle established in
Matter of L-). When a mater is adjudicated nunc pro tune, it is as
if it were done as of the time that it should have been done. See
Matter of A-, 3 I. & N. Dec. 1 68, 1 72-73 (BIA 1 948) (remedying a
prior failure to waive grounds of exclusion by entering an order
nunc pro tune ) . . . . Courts, also, have relied on the doctrine, in
order to retu aliens to the position in which they would have
been, but fr a signifcant eror in their immigration proceedigs.
The issue creating a need fr this "now fr then" action is timing. When the noral
timing of events gets tsted or inverted so that a rigt is lost only because of the tming, the
22
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
4
timing can be corected by taking action "now," today, efective "then," yesterday (i.e. always a
earlier date), the time when something should have been done but wasn't, to te prejudice of a
pay.
I ju about ay oter procedural context immigration judges would not thi of igoring
the real human difculties several of these respondents lived toug. IJs would have no qualms
about settng the cases at least somewhat sooner if the need were known.
Similarly, when a court canot accommodate a request to set a case sooner as occured in
three of the cases we ae not inclined to make the respondent pay fr the practica limitations of
the system. For exaple, if an asylum application has to be submited only at a master calendar
hearing ad te court's maser calendar fr coming weeks is already flled or overowing, we
will still add a cae in order to allow a respondent to meet a one-yea fling deadline, or, if we
canot, we would not prejudice the respondent fr our own fll schedue. I C-X- ad M-L-S
M- and F-1- the court could not or did not take action when it was asked fr by respondents. But
if te action can be taken now, efective back then when tey sought earlier action, and if
respondent is qualifed in the exercise of discretion and the cour ca gt te relief appropriate
to an actual depaure without prejudicing the other pa, the unintended injustce caused by our
natural busy-ness can stll be corected consistent with the appJicable law regading nune pro
tune action. "I is . . . beyond question that a award of nune pro tune may, in a appropriate
circumstace, be granted as a meas of rectifing error in immigation proceedings." Edard at
309.
C. Timing Erors
The Second Circuit refrs may tmes to "erors" that are corrected by nune pro tune
action. What is the nature of such errors?
First, it rejected DHS's view that the line should be drawn between inadvertent erors and
errors of judgment, i. e. between mere "mistakes" by IJs or te Board, which may be corected
nune pro tune, ad te more weight considered opinions, judgents, and oter intentional acts
later superseded by other law, which cannot. "Whatever the merits of that position may be in
other areas of the law, it is clearly not the approach that has been taken in the immigration
context." Id. at 309 n. 12. For our purposes, this means it matters litle whether the courts not
acting earlier in any of these cases is viewed now as an oversight or mistake on the one had or a
considered judgent on the other about the lack of sufcient time fr notice or lack of space on
the judge's calenda.
Second, Edards relied on an ealy decision of the Supreme Cour which shows the
equitable roots behind nunc pro tune relief, which "should be ganted or refsed, as justice may
require," says te Second Circuit, Edards at 3 1 0, citing Mitchell v. Oerman, 1 03 U. S. 62, 65,
13 Oo 62, 1 880 WL 1 8766,26 L.Ed. 369 ( 1 882). The context of the cited Supreme Cour
conclusion is helpfl :
23
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
t'
We content ouselves wit saying that the rule established by te
general concurence of te Aerican ad English courts is, tat
where the delay in rendering a judgment or a decee ases fom the
act of te cou, that is, where te delay has been caused either fr
its convenience, or by te multiplicit or press of business, either
the inticacy of the questions involved, or of ay other cause not
atibutable to the laches of the parties, the judgment or the decree
may be entered retospectively, as of a time when it should or
migt have been entered up. I such cases, upon te maxim actus
curiae neminem gavabit [an act of te court should prejudice no
one] -- which has been well said to be funded in rigt ad good
sense, ad to aford a safe and cerain gide fr te administaton
of justice,-- it is the dut of the court to see tat the paies shall not
sufer by te delay. A nunc pro tune order should be ganted or
refsed, as justce may require in view of te circumstaces of the
paricuar case.
1 03 US at 64-65. Te premise fr gating nunc pro tune relief "as justice may require" is the
need fr justice rater than a apportonent of blae, as long as te reason fr te delay is not
attibutable to the requestng pa's !aches or other demonstration of unclea hands waratng
denia of equitable relief (not an issue i any of these cases). By the word "delay" the Supreme
Cour implies not just a postponement but one which is prejudicial, one which should not
happen, or should not be accepted if it happens. But the delay need not be a blameworthy eror
or mistake by te cour in order to merit correction; it can be fr entirely reasonable grounds like
the cour's "convenience," the "multplicit or press of business," and so frth. As fr cous
themselves, the realit is that they need to fllow schedules fr a large number of people, which
means they canot always act immediately to meet ever litigant's timing needs. In immigation
courts in paicula, as the Supreme Court noted in Dada about the Boad, te practicalities of
dealing with out-of-the-ordina situations may render certain non-routine action ufeasible. It
even considered such practical timing difculties in te BIA's ability to address motions to
reopen a relevat premise fr construing the meaing of te statute:
It is freseeable, and quite likely, that the time allowed fr
voluntary deparure will expire long befre the BIA issues a
decision on a timely fled motion to reopen . . . . As a practical
matter, it is ofen te case tat an immigation judge or the Board
cannot reasonably be expected to adjudicate a motion to reopen or
reconsider duing the volunta deparure period. These practical
limitations must be taken into account.
Dada at 1 6- 1 7.
24
D - f- fW - F- R W MW 7 M R W
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
9
Lest one guess that "as justice may require" is too vague a standard to entust to
immigation judges, the Board has done exactly that befre. Acknowledging the lack of a
specifc authorization in te statute, the Boad ha allowed applicants fr admission to withdraw
their applications in exclusion proceedings when "justice may best be served." Matter o/Varga
Molina, 1 3 I&N Dec. 65 1 , 652-3 (BIA 1 971) ("The regulatons and states do not provide fr
the situation befre us . .. We therefre rule that an applicat fr admission . . . may be permitted to
withdraw his application if justice may best be sered by permitting the withdrawal"). Twent
fve years later in IR, Congess codifed this way of doing justice by legislating a specific
right to seek witdrawal of a application fr admission "in the discretion of the Attorey
General," INA235(a)(4).
Without queston, then, the power to act nunc pro tune is one of the procedurl tools that
make up an immigration judge's authority to "take ay other action consistent with applicable law
and regulations as may be appropriate. " 8 CFR 1 240. l (a).
X. A IN ABSENA ORDER OF REMOVAL IS NOT ALWAYS MANDATORY
W RSPONDET IS ABSENT
INA section 240(b)(5)(A) reads in pertinent part:
An alien who, ae written notice required under paph (I )
[TA] or (2) [hearing notice] of section 239(a) has been provided .
. . does not attend a proceeding under this section, shall be ordered
removed in absentia if the Serice establishes by clea,
unequivocal, and convincing evidence tat the writen notice was
so provided and that the alien is removable . . .
When the only two options under consideration were termination against DHS's will or an
in absentia order of removal against the respondent's, the Seventh Circuit held that terination is
prohibited ad an in absentia order is mandatory, as noted above. Ahmed v Gonzalez, 432 F.3d
709 (7th Cir. 2005). Tat court did not consider the third option presented here. Wle Ahmed is
not binding on this court it would not prevent the granting of volunta departure even if it were.
This decision does not dispute the holding in Ahmed: terination against the will of DHS
is improper when based on nothing but the respondent's alleged depaure fom the US duing
proceedings. But the fcts here are distnguishable in several respects. Most imporant, the
respondent in Ahmed did not ask fr voluntay departure, the IJ did not gant it and te Seventh
Circuit did not address it. Conversely, te respondents here do not seek terination as did
Ahed (except V-D-) so the Seventh Circuit's holding tat terination was not allowed does not
confict at all wth this cour's holding that volunta departure is allowed. On a fat level the
respondent in Ahmed presented neither proof of departure nor a statement of the reason therefr
but only the allegations of counsel. Nor did the immigation court make a fnding as to whether
the respondent had lef or, if so, fr what reason.
25
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t

The rationale of Ahmed is theefre subject to qualifcation in these cases. The Seventh
Circuit read IA 240(b)(5)(A) to say: "once an immigration judge has deterined tat a alien
(1 ) is removable and (2) has been provided with adequate notice, that judge shall issue a removal
order. " Ahmedv Gonales, 432 F3d 709, 71 1 (7th Cir. 2005) (emphasis provided by Seventh
Circuit). Five independent reasons explain why an order of removal is not mandator i all such
cases.
A. When Does Madatoi Deporation A ly?
Section 240(b)(S)(A) requires IJs to order people removed when tey fail to go to cour.
What is the domain of its applicaton? One fctual assumption is so obvious that Congess may
not have flt a need to state it -- those to be removed ae in the US. The general statement about
removal proceedings in section 240(a)(3) of the Act gives the frst step maing that assumption
visible:
Unless oterwise specifed in ts Act, a proceeding under this
secton (240, which includes section 240(b)(5)(A)] shall be the sole
and exclusive procedure fr determining whether an alien may be
admited to the United States, or, if the alien has been so admitted,
removed.
"Deterining whether a alien may be admitted" includes making deterinations about people
(like R-C-H- and C-X- here) who are ''resent in the United States" without admission, or have
"arrive[d] in the United States at a time or place other tan a designated by the Atorey
General," INA 21 2(a)(6)(A)(i) (emphasis added in each instace in this paragraph). Similarly,
people who have been admitted -- like F-I-, M-S-L-M-, and V-D--- may be removed if tey are
"in ad admitted to the United States," IA 237(a). Tose who have overstayed their allotted
period of admission are removable if they are ''resent in the United states in violation of law,
fl
IA 237(a)(l)(C). Thus, when constuing the various statutes pertaining to removal of people
fom the United States, it is sae to start fom the assumption that Congress's efrts are directed
against people who are indeed in the US. (This is a staring point, not the last word on the
mater. Emphatically, the point here is not a legal one about jurisdiction, i.e. whether the court
loses jurisdiction over people when they leave the US (we assume fom te case law it does not),
but a practical one about the likely assumption Congess made about the domain of application of
this section when drafing section 240(b)(5)(A).)
A "primay motivation in instituting . . . mandator deportation fr failure to appear was
the high number of aliens who failed to appear at hearings,
lf
Matter ofGrialva, 21 I&N Dec. 27,
30 (BIA 1 995), citing US v Perez-Valdera, 899 F. Supp. 1 81 , 1 85 n.2 (S.D.N.Y. 1 995) (which in
tum cited the legislative history), not because they had lef the US but because they hoped to get
frther benefts by lingering longer. The in absentia provision was intended to "preventO aliens
26
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t

fom beneftting fom the various discretiona frs of relief afer filing to appear fr their
heaings." Grialva at 30, citing a 1989 GAO report.
B. Removal Under IA 240()(5)(A) is Mandator When That Section A lies. But That
Secton Does Not Always Ap
When secton 240(b)(5)(A) applies, its ters ae madator, but whether it applies or not
depends on whether other provisions of law take precedence in te circumstances. For itc,
waiving a person's presence under 8 CFR 1003.25(a) will, i exercised, tmp the obligation to
order the absent person removed. So may gting "a reasonable adjouent either at [the IJ's]
own instance or, fr good cause show, up-on application by the respondent or te Service." 8
CFR 1240.76. When presence is waived prior to the hearg, INA 240(b)(S)(A) obviously has no
application at all, even though its literal ters would requie removal i it applied. So section
240(b)(S)(A) is not absolute but relative to other provisions of the Act ad regulations as a
whole.
Even when not done befrehad an immigation judge ha, and does indeed exercise, the
power to waive a person's appearance or to gant an adjouent when justice requires at the
hearing itself, rater tha necessarily deport the absent person. I an atorey reports tt a client
with a good recor of attendance and prima fcie eligibilit fr relief ha called to say she is
stuck in tafc, or at the hospita, or her child is sick, or the respondent has some other
compelling reason fr not being there, the court c waive the person's appearance or re-set the
case. It sometimes makes sense to exercise discretion to waive an absent person's appearance
rather tan artifcially go through the fralities of an in absentia order of removal when
credible evidence (including te representations of an ofcer of the cour) already shows
exceptional circumstances fr te person's non-appearance that would warat re-opening upon
submission of a motion to reopen later. The Second Circuit approves of tis practice, and
demands a genuine exercise of discretion in such cases. Where a respondent moved to change
venue and was absent in anticipation of the motion being granted, the immigration court ered in
ordering the respondent deported in absentia under INA 240(b)(S)(A) (actually, under its
identical predecessor statute, codifed then as 242B(c)(l)), instead of considering the merits of
the motion. The in absentia provision does not apply absolutely to require deportation without
regard to other regulations, which may make their own demands on a IJ that would be
contradicted ifthe person were blindly deported as if240(b)(S)(A) were the ony provision of the
law.
While secton 242B(c)(l) requires a IJ to issue a deportation order
in absentia under appropriate circumtances, we do not believe
that the IJ was precluded fom considering the change of venue
motion. IS regulations provide an IJ with broad discretion
regading change ofvenue.8 C.F.R. 3.20 (ganting IJ discretion to
change venue fr "good cause"). The IJ is required to take all
relevant fctors into account in exercising this discretion. Campos
27
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
9
v Nail, 940 F.2d 495, 497 (9t Cir. 1990) (holding that the distict
courts have jurisdicton to ejoin immigaton judges fom denying
change of venue motons pursuant to a "consistently-applied and
rigid policy" rather than a conideration ofthe facts ofan
individual cae); Baires v IS, 856 F.2d 89, 91 -92 (9th Cir.1988)
(holding tat chage of venue "motions must be evaluated on a
case by case basis").
Furer, an IJ, like any judicial ofcer, has discretion to
grant a brief adjouent when doing so will advance the goals of
adjudication. See generally 8 C.F.R. 3.29 (" The Immigation Judge
may grat a motion fr contnuance fr good cause shown. "); 8
C.F.R. 242. 1 3 ("the Immigation Judge may gant a reasonable
adjouent either at his or her own instance or, fr good cause
shown, upon application" of the parties). The Ninth Circuit has
noted tat "wheter denial of a continuance in an immigration
proceeding constttes a abuse of discretion cannot be decided
throug the application of brigt-lie rles; it must be resolved on
a case by case basis according to the fcts and circumstaces of
each case." Baires, 856 F.2d at 91 . At oral agument in this case,
the government contended that because ofsection 242B the IJ did
not have the power to gant a short adourment. We disagree. Cf.
Maldonado-Perez, 865 F2d at 331 (in pre-section 242B cae, cour
recessed all morng to aford alien an opporunit to appea) .
. . . We do not believe that section 242B compels a blind
application ofthe in absentia deportation provision without regard
to a close examination ofthe facts ofthe case . q B We need not -
and do not -- decide whether the IJ was required to grant the
motion fr a change i venue. Rather, we fnd disquieting the IJ's
failure to examine the particulars ofthe case before him prior to
either issuing the in absentia ruling or denying the motion to
reopen--a filure that we ascribe to the /J's mistaken belief that he
was statutorily precluded fom doing so.
Romero-Morales v INS, 25 F.3d 125, 130- 131 (2d Cir. 1 994) (all emphases added). Thus it is a
mistake fr an IJ to believe that the mandator in absentia provision precludes consideraton of
the extaordinary circumstances leading to a motion to waive an absent person's presence. I
such circumstaces, if other provisions of law tae precedence, section 240(b )(S)(A) does not
necessaly apply. Circumstances may direct the IJ to other statutes or regations meant to
accomplish puroses which take priority over the in absentia provision in tose circumstances.
28
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
C. If A In Absentia Removal Order is Absolutely Reuired For Ever Non-Appeaance Then
the Court Lacks Power to Grant Terination Even Wen the Pares Agee Otherwise
One of these fve cases, V-D-, starkly represents this possibility. Befre DHS changed its
mind and ofered terination, respondent had already failed to appea at a heaing fr whch she
received notce, and DHS specifcally moved to deport her in absentia. Now ifDHS were
corect that she absolutely must be deported in absentia because, in the Seventh Circuit's words,
she 11(1 ) is removable and (2) has been provided wth adequate notice" and tat's all there is to it,
and as a consequence the "judge 'shall' issue a removal order," Ahmed at 71 1 , then the IJ might be
violating his obligation under Romero-Morales by hs "failure to examine the particulars ofthe
case before him prior to either issuing the in absentia rling or denying the motion [fr voluntar
depare, administative closure, or terination in V-D-'s case] -- a failure that we ascribe to the
!J's mistaken belief that he wa statutorily precluded fom doing so. " 25 F.3d at 1 31.
But instead the cout waived her appearance, at least by implication, ad adjoued te
cae to fesh out the fcts and application of the law to them, in her case in pa because she was
still a minor ad had no paents ad migt be prima fcie eligble fr special immigant juvenile
status i other words, deportng her in absentia migt be [precipitous in tese circumstances.
We did not yet know. Eventually, afer several more continuaces, the additional evidence
convinced DHS that , ad it seeks to exercise its ow discretion to ask that her case be
terinated. Now again, if240()(5)(A) absolutely requires a in absentia order in ever case
where its literal ters apply without regard to an other provisions ofla, ten the cu had no
power at the fS hearing to postpone the case but only the power to order her removed, and has
no power today to terminate but only to order her removed. The provision DHS would read as
literally binding in every case -- ordering her removed in absentia no matter what -- does not
contain any literal exception fr cases where the DHS later agrees to terinate. So terminating
V-D-'s case as DHS now requests can only be done if240(b)(5)(A) is either (1 ) igored or (2)
read as relative to other laws rather tha as absolute. The frst option is untenable, so we must
fllow the second. The second is reasonable, is probably correct, ad has application to oter
provisions of law and regulations as well. Those would include the cour's power to grant
voluntary departure nunc pro tune if tat is otherwise consistent with applicable law. I other
words, under option (2) section 240(b)(5)(A) would no longer be a obstacle to do what may
otherwise be right in tese cases.
5
Even to argue that the cours power to teninate derives fom DHS's consent misses the poit, because it is still
the cour, not DHS, that has the sole power to terminate (dismiss) once the NT A has been fled with the cour, 8 CFR
1239.2(c), even though OHS has the sole power i some cases to request dismissal in this context.(ln other contexts
the cour has power to teninate even when DHS opposes it. See, e.g. Matter ofG-Y-R-, 23 I&N Dec. 1 8 1 , 1 92
(BIA 200 l ), holding that where OHS does not establish by clear, convincing, and unequivocal evidence that the
respondent received or can be charged with receiving a notice, the lJ cannot proceeded in absentia, but should
terminate.)Te Seventh Circuits reliance on the same regulation just cited to say that o[i]migration rle give
enfrcement ofcials, not immigation judges or the BIA, the discretion to terinate removal proceedingso is
overstatement. It is still the cour that h the sole power to terinate once the case is befre it, and if240(b)(5)(A)
absolutely requies a removal order in absentia in ever case of an absent person, the court is without authority to
terminate the case even if OHS requests it.
29
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
V-D-'s cae is terefre certifed to the BIA along wit the cases granting volunty
departure because ifDHS is rigt that the immigation judge ha no dscretion to do anything but
deport a absent person because of the mandatory language in IA 240(b )(S)(A), then it has no
authorty to terinate V-D-'s case eiter, or to postpone it, or t waive her presence, even ifDHS
wants to terminate. I OHS is rght about 240()(5)(A) being absolute, the court is wong about
its power to terinate her case when she is absent.
But OHS is not rigt, precisely because section 240(b)(5)(A) is not absolutely and
literally mandator in every case. Like other provisions of the law, it must be read in relation to
all te provisions of the Act ad regulations as a whole. DHS's support fr V-D-'s terination is
itself a reductio ad absurdum agument against its position i the other fur cases, demonstating
that reading 240(b)(5)(A) to prevent voluntary depaure would by te same logic prevent
tenination when OHS supports it. Since it is demonstably absurd to read it to prevent a
stipulated terination, it is equally absurd to prevent voluntar departure by the same reading of
240(b )(S)(A).
D. Grating Volunt Departure Nu Pro Tune Retoactively Eliminates the Reuirement to Be
Present at the Missed Hearing
Black's Law Dictiona says the Latin phrase "nunc pro te" applies to acts allowed to
be "done afer te time when tey should be done, with a retoactive efect, i .e. , with the sae
efect as if regularly done." It is that retoactive efect that allows nunc pro tune relief to cure
timing defcts. I allows a later act to take precedence over an earlier act exacty as i the later act
had occured ealier. It alows "now" to occur, as it were, before ''hen," the earlier date. It
switches the temporal order of events in order to do justice.
So, if the court grants voluntary depare today, efective prior to the missed heaing,
then the voluntary departure order takes precedence i time, a i it had been ganted befre the
scheduling of the hearing. The efect (which is intended) is that the scheduled hearing is no
longer scheduled. The "written notice" of the hearing has been superseded by the fnal voluntar
depare order. It is no longer true that the respondent "does not attend a proceeding under this
section," which is the premise fr the application of section 240(b)(5)(A), because in the new
order of events brought by nune pro tune action, the proceeding has fnished prior to te missed
hearing. The volunt departure order has already taken efect, so no fture scheduling of the
case ca have any meaningfl efect. Rather than just adjouing the missed hearing, by a nune
pro tune order the court cancels the missed hearing. Tus no hearing is missed because none is
scheduled any longer. If no hearing is scheduled, the premise fr applying INA section
240(b)(5)(A) disappears.
30
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
9
E. A Vollntm Depare Order I A Final Order of Removal
It should not be glossed over tat a order of voluntary depae includes an order of
removal, and if i is made to tae efect in the past, te voluntay depare period will have
expired by te tie the voluntay depare order is entered, so tat on te day it is entered, the
order is a fnal order of removal if the respondent is still in te US. That is te case i each
instance here where the cout gants volunta departre retroactively. And if the respondent is
no longer in the US, so much te beter -- mission accomplished, all paies beneft.
Thus to the extent tat we should read INA240(b)(S)(A) as requring the cou to order
respondent removed in absentia, we ae accomplishing exactly tat. We accomplish not only the
spirt of the law but its leter as well. Secton 240(b)(5)(A) was added to te Act i 1 990 to bring
fnality to proceedigs. See, e.g., USv. Perez-Valdera, 899 FSupp. 1 8 1 , 1 86 n. 2 (SDNY 1 995)
(giving a brief discussion of the bref legislative histor). A voluntay depaure order has te
sae fnality as an order of deporation or removal, and in these cases an order of remova takes
efec immediately when volutary departure is grated nunc pro tune.
XI. STADAS FOR APPLYIG NUC PRO TUNC RLIEF
Nunc pro tune action is alowed in principle. Now, i te specifc facts of tese or any
other cases, how do we assess whether "justice require" allowing voluta depae nunc pro
tune? Based on the nature of the cases ad te law discussed so fa, six steps or principles appea
worty of consideration in ay such case:
A. Did the Person Request Volunt Departue?
Volunta departure is not necessaly best fr everyone, ad not everone wants it, as
discussed above (section VIII.A). Recently, fr exaple, a couple wit two US children and
pending applications fr cacellation fr non-residents in this court met a faily emergency in
Argentina. Te wf lef with the children prior to her heaing. The husband came to cou as
scheduled, seeking voluta depae, which was grated with DHS1s agreement. But the
lawyer explicitly chose not to seek volutary deparre fr te wfe because it gave her noting
more tan a deportation order would, since she was also subject to a 1 0-year re-entry ba fr
having lived here more than a yea illegally, a bar fr which having US citizen children would
not quaif her to seek a waiver. It was in her best interests to have the 1 0 yeas ruing already,
and not in her interests to postpone its sta by litigating a frm of relief that gves her nothing
practical even if she wns.
B. What Were the Reasons fr Leaving?
Certainly if the resondent or a close faily member sufers the kinds of hadship that
would induce te cou to grant a postponement, waive otherise-required atendance or reopen a
case, the cou should no more igore it when the person goes abroad than it does when the
3 1
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t


person tends to the fmly member here in the US. Te court should inquire into it, ad give
respondent an opportunit to demonstate or explain it fther if he or she wants to.
I a hadship is not shown or is unnow, that should not by itself preclude voluntar
departure nune pro tune but it may necessitate a showing of oter imporant factors implicatng
justice, such as making a request befrehand that the court could not respond to on time.
C. Has the Person i Fact Lef?
All te evidence should be considered, direct and circumstantial. If it is clea tat the
person is aeady outside the US, the procedural requements fr volunta depare that seek to
guaratee depature wll become superuous ad moot.
Also, even if voluntary depare is denied in the exercise of discretion, a fnding tat te
person h aready lef te US may help do justce in te ftue, sice being outside the US may
by itself constitute an entirely appropriate reason fr not attending the heaing, a potentially
important fnding because a person who has failed to appear at a hearg witout good cause is
ba ed fom re-aission to te US fr 5 years. IA 212(a)(B). A fortiori if a person lef te US
because of a family emergency the failure to attend te hearing may be all the more justifed.
D. Should te Court Grant Volunt Depare?
To fd that a person is not bared fom seekng voluntry depare is not te sae as
fnding that voluntar depae should be granted on the merits. A person may fce other
statutory bars (e.g. conviction of an "aggavated felony"). Or a person may .ot merit a gant of
volunta deparre in the exercise of discretion. Each case must be examined on its own fcts,
according to te long-standing standads fr the exercise of discretion in such cases, which will
aguably be no diferent in tese cases.
What is important here is to recognize that this discretona deterination is
conceptually dferent ad proceduraly separate fom te discretonary determination whether to
entertain a volunta depae request nunc pro tune. There may be good reasons fr
entertaining a volunta departure request but also good reaons fr denying it on te merits.
Conversely, there may also be good reasons fr grating voluntay departure (or a lack of
disqualifing fctors, which may be sufcient i some caes) but a lack of good reasons fr
enteraining it in the fst place, i.e. because the person has filed wtout good cause to atend a
heaing.
A waiver of the rigt to appeal is a regulatory requirement fr grnting voluntar
depae prior to te conclusion ofproceedings.8 CFR 1 240.26(b)( l)(D). As discussed above
(secton VIIl.C.) that provision is intended to guaatee te respondent's departure ad to
guaatee tat te goverent receives its quid pro quo in te bargain. Dada, sura at 1 1 . Wit
te court fnding respondent has aready departed, te purose of tat provision is already met.
P W -

, , ,
32
*M. W ,~ Q y p
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
9
As also discussed, deparure fom the US constitutes a withdrawal of any appeal, 8 CFR 1 003.4,
so the letter of te law is met as well as the spirit. 6
E. When Should the Volunt Depae Period Begn and End?
To accomplish the goal of doing justice when voluntar depaure is actually ganted nunc
pro tune, the voluntar departe perod should begin when a heang would have been set if te
cou had been able to advance the heaing to that date; or, in te case of a person who had an
emergency and lef, then a short time befre the depare. Tis is the date of the "te" the
"ten" in the court's order, the date the order becomes efectve. Wen the order becomes
efective on that earlier date, the heaings that had been scheduled aer tat date ae no longer
scheduled, ad if no longer scheduled, a respondent is no longer required to be present at them.
He or she cannot be considered absent fom tem, much less absent without good cause. If not
required to atend any hearings beyond the efective date of te cour's order, respondent cannot
be considered "absent" fom such a non-hearing, so the factal premise fr an order of removal in
absentia fr missing such a later non-hearing no longer exists.
To do justice the voluntary depare perod should end afer the last reasonable date that
respndent would have l ef, but obviously no longer tan the maimum date allowed by statute
and regulations (60 days at te conclusion of proceedings, 1 20 if befre the conclusion of
prceedings). The respondent thus can enjoy the beneft of voluntary depaure if he or she
proves deparue befre the expiration of that period. In all cases where a person has lef the US
befre the missed cour hearng the volunt deparure period can end on or befre te date the
order is entered, the "nunc" or "now" date. This gives immediate protection to DHS equal to
what it gets fom an in absentia order of removal.
7
The fnal order is not just one fr voluntar
deparure anymore, but is an immediately enforceable order of removal if respondent should still
be in the US. An honest respondent, on the other had, avoids an order of removal. Both paries
win, neither loses.
F. A ly the Usual Rules to Continuances fr Furer Evidence
The cou's authority to schedule and reschedule cases, gant continuances, ad wave
respondents' appearance ca be employed at any stage of ay proceeding according to the court's
soud discretion. Respondents who leave the US have no guarteed right to fther
continuaces or a waiver of their presence if they do not appear at cou, but only a rigt to seek a
sound exercise of the court's discretion, as is always the case when exceptional circumstances
occur i the immigation cours. When necessa to address practical circumstances like the
The waiver of appeal should not be confsed with the right to seek one motion to reopen within 90 days of a fnal
order. Dada at 1 9. Even where voluntar departure is ganted in a normal case while the person is still in the US,
and the right to appeal is explicitly waived, and then the person leaves the US, a motion to reopen may nonetheless
be made.
7 The goverent is arguably in a beter position than with a in absentia order, because a respondent who
overstays a voluntar deparure period does not enjoy an automatic stay upon fling a motion to reopen.
33
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
&
gathering of evidence of an emergency or evidence of depaure, the court may make the sae
kinds of procedural decisions it makes in any other circumstance. This autority is exercised
routinely arey in such cases and is generally non-controversial.
X I. APPLICATION OF LAW TO FACTS
Based on te fndings of fct (section IV above and the conclusions of law (mainly
sections Vilthroug X above) this section applies the law to the fcts by generally fllowing
the standads in section XI to each of the fve cases as fllows.
A. F-I-
F-1- admits he is removable uder INA237(a)(l )(B) and he is. He requested volunta
depaure in writing tice befre he lef, but he could not wait fr the hearing because his
moter's grave condition. (She died the day befre he arrived.) The court's continuces afer
his depae gave him the opportunity to document his reason fr leaving, which he did amply,
ad his wf also appeaed in person to coroborate the infraton presented. As fud above,
he has indeed lef, ad had good cause fr missing his heang. As a practical matter imigton
restctions will not allow him to ret just fr his heang. He seeks voluntary depae at the
conclusion of proceedings, meet the statutor requirements, and merits the relief a a matter of
discreton.
The court will gt volunta departure fr 30 days nunc pro tune as of April 27, 201 0,
the day his second motion was fled. Since he has already departed a bond fr his departure is
moot. Because ts is a fnal order efective that date, all subsequent hearings fr him ae
cacelled nunc pro tune, i.e. prior to any required appearance by him at them. Because he is
already out of te US any appeal is waived by his deaure as a matter oflaw.
B. R-C-H-
R-C-H- has conceded fom the outset that he is removable, but has maintained as a
question of fct that he came to the US with a visa and he sought a replacement 1-94 to
substatiate it. Without his proof of entry with a visa, DHS charged he is present without
admission under INA21 2(a)(6)(A)(i). Respondent has gone to great lenghs to prove time place
ad maner of his departure has not done the same fr his enty. The requirements of 8 CFR
1 240.26(b)(l )(i)(C) requiring a concession of removability is clearly met by his longstanding
concession, and te goverment's specifc charge is sustained because respondent, conceding
alienage and removabilit, has ofered no evidence contesting it.
R-C-H- requested volunta departure through counsel fllowing his actual physical
depaure fom the US on November 1 3, 2008. He lef because of the death of his mother, an
extaordina ad compelling reason fr not attending a court heaing, and with the practical
immigation restrictions on coming back into the US fr a mere removal proceeding, his choice
34
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
4
to be with her was prett much irevocable. A merts hearing was not yet set in his case, ad his
request fr volunta deparure is made prior to te completion of removal proceedings.
He was convicted of crimnal contempt under New York Penal Code 21 S.50, a Class A
misdemeaor, on June 20, 2007 and sentenced 6 months' imprisonment with a conditional
discharge of one year and fve years' probation. He was convicted of disorderly conduct, a
violation, on September 1 2, 2007 under New York Penal Code 240.20 and sentenced to a $25 .00
fne. Neither crime is an "aggravated flony" or, fr that matter, a crime involving moral
turpitude. He is statutorly eligible to seek voluntary depaure prior to the conclusion of removal
proceedings, and would also be eligible if he were seeking it at te conclusion of proceedings.
Te only issue is whether to grant volunty depaure in the exercise of discreton. While this
issue is contested, it is a completely conventional one in immigation law.
The court's discretion in his case is informed both by his circumstances and by the 1 996
chage in the law in which Congess sigaled tat the main issue to be addressed in pr
conclusion voluntary departre decisions is the practical efciency of te quid pro quo te
Supreme Cout refers to in Dada. The good moral character of the individual is not a importat
issue, at least if the person is not defned by law a having committed an "aggravated flony."
Both paries stand to gain if respondent leaves under his or her own steam. On the other hand,
tose who make te goverent expend resources preparing fr ad in many cases litgatng an
application fr relieflike asylum or cacellation of a waiver have pret much eliminated the
efciency issue, making their character a relatively more imporant remaining issue. In exercising
discretion at the end of a hearing it is more important to know about the character of the
applicat tan it is when a request is made befre a merits hearing has been set. The cour
inquired here about frther details of respondent's convicton fr crminal contempt, a crime
whose elements mostly involve disrespect or disobedience fr a court. But the cou has had time
to refect ad would apply te sae standard here as it would if respondent were personally
present befre leaving. Te main issue about discretion is whether he will really leave. I so, the
goverent gets its quid pro quo, so he should get his. If not, he should not get his. If we were
hearing tis case prior to his departure we would see in his mother's grave condition ad his
fther's pending visa application fr him a strong incentve fr respondent to leave as ordered.
As their decision based on criteria relevant to the beneft he seeks ad the equities he presents at
that time, whenever that may be. Whatever good or bad occurs beteen now ad then will be
their duty to consider. Our duty at this point, where Congess does not even require that he have
good moral character, is to ascertain that he really will leave, and everthing points to the fct
that he will, or, looking back now, that he in fct did. The US has received its beneft. He should
receive his. Allowing him to leave voluntily under te scheme Congress expanded in 1 996 fr
the mutual beneft of individuals ad the goverent at least keeps the door open so that
discretion can be exercised in his fvor later if the circumstaces ae such that it should be, ad
that appears to be wholly consistent with the liberaliztion of the voluntar departure law in
1 996.
35
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
I his case his lawer makes the point that his fther is a US citizen and has lived in the
US a long time. He has fled a visa petition fr his son. His mother lived in Costa Rica and has
died. The court does not know whether he should become a resident or not, but a fctor not to
i gnore is tat gting voluntay dearture keeps open the exercise of oter fctonaies'
discretion i it should be best fr him, his fter, and the rest of the US that he become a resident
in the ne fure. I have actually deliberated long and taen seriously DHS's aguments agat
voluntary depare, but decide against that course because ts request is stll govered by the
new policy created by Congess fr such requests made befre the conclusion of proceedings,
and I believe that policy is met by giving fll weight to te hardship he has already sufered in his
family prompting him to leave, ad leaving open (but cery not guaanteeing) the possibility
of his retng to te US to join his fter. And he has lef, and the US goverent ad people
have already received that benefit, so the quid pro quo he deseres should be gted. He ha
been respectfl of tis court in the many efors he has made to give documentation fom Costa
Rica of his depare, and, especially in l igt of his earlier crimina conviction fr disrespect of
aother court, that more recent action should not be igored.
Te court will grant a period of 30 days' voluntary departure nunc pro tune efectve
November 8, 2008, te day of his moter's death, fve days befre te apparent date of his actual
depature. Wit that a the efective date of the court's order, subsequent heangs ae no longer
in efect, so as of now he wa no longer required to atend ay heaings, ad no longer missed
any required heaings; in the aterative, by leaving the US to attend to hs mother upon her death
he had good cause fr failure to atend subsequent heaings, coupled with the practical fct that
he would not be able to re-enter the US simply to attend removal proceedings once he had lef.
His departe is a waiver of appeal as a matter of law.
C. M-L-S-M-
M-L-S-M- requested voluntar depature and requested an earlier hearing date to receive
an order fom the cour but did not say why she wanted to leave ealier. We do not mea t imply
that she should have stated a reason, since the NTA itself gives the impression that a hearing can
easily be had in less tha 1 0 days, when in fct it can't, at least not in our court. The court did not
grant as early a hearing date as she requested, but did gant one which was both earlier and early
enough to meet the need fr departure by the date she had requested (a heaing October 1 to
depart in the "middle of October"). She did not appea October 1 . She did not appea at any
other time. She did not write again with a copy of a ticket to inform the court of a planed
departure date, as some people do. She did not send proof or even a letter fom her home country
afer arriving saying that she had lef, as we receive in some cases. As to the question wheter
she lef, we fund above, section I.B. l , that the evidence does not show that she lef. Since the
evidence shows neiter that she lef the US nor that a emergency or extraordinar circumstance
explains her absence fom the hearing October 1 , we cannot waive her apeaance, and must fnd
that section 240(b)(S)(A) applicable in her case.
36
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
The goverent has presented clear, unequivocal and convincing evidence that she is a
citizen of Colombia and that she cae to the United States December 6, 1 995 on a B-1 visa ad
stayed beyond her allotted period. The allegations of the NTA are proved. She will be ordered
removed in absentia.
We do not reach the question wheter she should be ganted volutary departure, but if
we were to reach it the court would gant it, as she seeks it befre the conclusion of proceedings,
is statutorily eligible, ad no disqualifing fctor is shown.
D. C-X-
Pleadings were taken befre venue wa chaged i his case ad respondent, through
counsel representing him at the time, conceded removabilit, which settles tat matter.
C-X-, unrepresented aer venue was changed to New York, cae to court in person wit
a ticket in had to infrm the court that he planed to leave the US voluntarily witout the US
having t deport h. The evidence, including circustantial evidence, preponderates in fvor of
his having lef the US prior to his ft scheduled master calendar heaing wit the New York
immigation court August 1 0, 201 0, whch would have been a day or two afer he appeared in
court, ad a day or two befre his hearing. Specifc fdings were made under section IV. B.2
above.
Given tat he most likely was not in the US on the day of his hearing, and likely believed
hmself to have complied with te wishes of the US goverent by leaving, the court fnds he
had good cause fr being absent. I will waive his appearace fr tat day. His request fr
voluntay departure is made well befre te conclusion of proceedings. It will be granted nunc
pro tune fr 30 days as of August 6, 201 0, which is approximately the day he came in person
infrming the court he wished to leave voluntarily.
If it should tm out that the court is wrong, ad te respondent is actually still in the
United States, ten the 30-day voluntar departure period has already expired and a fnal order of
removal to China is in efect against respondent.
E. V-D-
V-D- asked fr voluntar departue as one of several frms of relief afer her attorey
concluded she had gone to Canada to live with relatives fllowing the death of both of her
parents. Other frms of relief included administrative closure and terination. At her frst
missed hearing, befre the details of her absence were kown (but her age, 20, her having come
to the US at 15, and her having lost both parents afer that, were kow) DHS opposed a
continuance fr gatering fher infrmation and moved fr her removal in absentia. The court
ganted a continuace over its objection, with an implicit waiver of he presence.
37
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
On October 26, 201 0 her attorey had more information about her having gone to
Canada. Tis time DHS did not oppose a contnuace, and said that if she went to the US
consulate i n Caada it would conside ageeing to terminaton.
Now DHS taes the point of view that it was not mandatory to order her deported in
absentia at her frst missed hearing afer all. Why? Appaently only because DHS says so, which
is not the law, but no other reaon is given. But even i it were the law, it would prove already
that the appaent mandate in IA 240(b)(5)(A) -- that the judge the "shall" issue a removal order
-- is not absolute. IfDHS's consent constittes a valid exception, then exceptions exist, even
though te statute provides fr none. Where do they come fom? That is really no myster.
They come fom reading immigation law as a whole, where each pa is relative to ever oter
part. It also means that despite DHS's prefrence againt a continuace at that frst missed
hearing, the power to gat such continuaces ae aoter exception to the apparent mandate t
depor. This was all discussed above, but it must be emphasized here tat if DHS prevails i its
argument that 240(b)(5)(A) is absolutely mandator so tat the court has no option but to issue an
in absentia order in ay of these caes, then it must order V-D- deported as well, because she too
was absent aer receiving notce, ad tere is no more of a exception writen ito the literal
terms of 240(b )(5)(A) fr her tha there is fr anyone else. The reductio ad absurdum aguent
leads us to ask, "To what end ae people ordered removed under this section?", which is also the
man question in statutor constuction: What is Congess's itention here?
These questions ae addressed above i section XI. Applying te law here, the court fnds
that V-D- had good cause fr missing her hearings because she was out of the US, and out of the
US fr good reasons. It waives her presence at those heaings. It consequenty will not order her
removed in absentia fr failure to appear at those hearings aer receiving notice. It now
terinates tese proceedings on the joint motion of the parties.
XIV. CONCLUSION
A grant of voluntary depare nunc pro tune where appropriate is consistent with
applicable law and in the best interest of all paries involved. The individuals gated that relief
here have all demonstated respect fr the court by their communications befre or afer their
depares or both, and have already cared out at no expense to the goverent what the
goverent has set out to accomplish in initiating these proceedings fr their removal. May of
them were pushed into their actions by circumstaces that make appece i court a small
mater by comparison. Grating them voluntar deparure accomplishes what voluntar depaure
is supposed to accomplish: it leaves open the possibility tat tey may enjoy te oppornit to
retu to the US legally in the fture with less burdensome obstacles.
To DHS it gives everything an in absentia order of removabilit gives: a fnding on the
charges of removabilit, and a fnal order of removal efective today if any resondent should stll
be in te United States.
38
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
For te system it gives a vehicle to recogize and respect a fw more of the exceptiona
circumstances fcing individuals who appea in imigation cours, ad helps the system be
more responsive to individuals fcing such circumstances. It does not require IJs to take any
particular action as a mater of law, but on the contra opens the door to acts of judgent and
discretion where the door was closed befre.
ORDER
IT IS HERBY ORERD nune pro tune as of April 27, 201 0 that F-I- depart the United States
voluntarily on or befre May 27, 201 0. lfhe does not leave te US by that day he shall be
removed to Indonesia. Appeal is waived by operation of law as respondent is outside the United
States.
IT IS HEREBY ORDERD nune pro tune as of November 8, 2008 that R-C-H- depart the
United States volutarily on or befre December 8, 2008.Ifhe does not leave the US by tat day
he shall be removed to Costa Rica. Appeal is waived by operation of law a respondent is
outside the United Sttes.
IT IS HEREBY ORDERD tat M-L-S-M- be removed in absentia to Colombia. She wll have
1 80 days to rescind this order.
IT IS HEREBY ORERD nune pro tune a of August 6, 201 0, that C-X- depart te United
States voluntarily on or befre September 5, 201 0. If he does not leave the US by that day he
shall be removed to Peoples Republic of China. Appeal is waived by operation of law as
respondent is outside the United States.
IT IS HERBY ORDERD that V-D-'s case be terminated. Both parties waive appeal.
IT I
.
FURTHER ORDERD that these fve case s e joi e{ifr e t .
deem on.
c:
39
William Van Wyke
Immigration Judge
December 1 7, 201 2
ith this
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t