Cite as 25 I&N Dec. 143 (BIA 2009) Interim Decision #3664
143
Matter of Catherine VELASCO, Respondent
File A088 150 615 – Houston, Texas
Decided November 20, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The voluntary departure regulations at 8 C.F.R. § 1240.26(c)(4), Nt. (2009), which took
effect on January 20, 2009, and superseded Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA
2006), do not apply retroactively.
(2) Where an Immigration Judge granted voluntary departure prior to January 20, 2009, and
the alien failed to timely post the voluntary departure bond required by section 240B(b)(3)
of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b)(3) (2006), the former
regulatory scheme, as interpreted in Matter of Diaz-Ruacho, remains applicable, and the
penalties imposed by section 240B(d)(1) for failure to depart within the voluntary
departure period do not apply.
(3) Pursuant to 8 C.F.R. § 1240.26(c)(3)(ii), Nt., a voluntary departure order entered
by an Immigration Judge on or after January 20, 2009, will not be reinstated by the Board
of Immigration Appeals in its final order on appeal unless the alien provides the Board,
within 30 days of filing the appeal, sufficient proof that the voluntary departure bond was
timely posted with the Department of Homeland Security.
FOR RESPONDENT: Mayda Gil de Lamadrid, Esquire, Sugar Land, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Erica McGuirk, Senior
Attorney
BEFORE: Board Panel: HOLMES and HESS, Board Members; KENDALL CLARK,
Temporary Board Member.
HOLMES, Board Member:
On February 18, 2009, we dismissed the respondent’s appeal from the
Immigration Judge’s January 23, 2008, decision but reinstated the 60-day
period of voluntary departure that she had been granted by the Immigration
Judge. The parties have now filed a joint motion to reconsider that aspect
of our decision reinstating the Immigration Judge’s grant of voluntary
departure. The Immigration Judge’s grant of voluntary departure was
conditioned upon the payment of a $500 voluntary departure bond pursuantCite as 25 I&N Dec. 143 (BIA 2009) Interim Decision #3664
1 Although the new regulations were not effective until January 20, 2009, they were included
as a note on pages 1049 to 1051 of the 2009 Code of Federal Regulations, which was revised
as of January 1, 2009. In this decision, we cite to the new regulations as 8 C.F.R.
§ 1240.26(c), Nt. (2009).
2 The voluntary departure bond regulation first took effect on April 1, 1997. See Inspection
and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312, 10,372 (Mar. 6, 1997).
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to section 240B(b)(3) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229c(b)(3) (2006). The parties agree that the respondent did not pay the
voluntary departure bond. They now request reconsideration and clarification
of the respondent’s present status in light of the regulatory changes regarding
the consequences for failing to post the bond, which took effect between the
Immigration Judge’s grant of voluntary departure and our order reinstating that
grant. See Voluntary Departure: Effect of a Motion to Reopen or Reconsider
or a Petition for Review, 73 Fed. Reg. 76,927, 76,937-38 (Dec. 18, 2008) (to
be codified at 8 C.F.R. § 1240.26(c)(4));1 see also Dada v. Mukasey, 128 S. Ct.
2307 (2008). The motion to reconsider will be granted.
I. FACTUAL AND PROCEDURAL HISTORY
In January 2008, when the Immigration Judge granted the respondent
voluntary departure, our decision in Matter of Diaz-Ruacho, 24 I&N Dec.
47 (BIA 2006), was controlling law. Applying the version of 8 C.F.R.
§ 1240.26(c)(3) (2006) then in effect,2
we held in Matter of Diaz-Ruacho that
an alien who fails to post the voluntary departure bond within the required
5-day period is not subject to the penalties imposed by section 240B(d)(1)
of the Act for failure to depart.
At the time we decided Matter of Diaz-Ruacho (and when the Immigration
Judge granted voluntary departure in this case), 8 C.F.R. § 1240.26(c)(3)
provided that “[i]f the bond is not posted within 5 business days, the voluntary
departure order shall vacate automatically and the alternate order of removal
will take effect on the following day.” We reasoned that an alien cannot
be deemed to have overstayed the granted voluntary departure period if that
order has been vacated. Consequently, we held that an alien who has not
timely posted the required voluntary departure bond is not subject to the
section 240B(d)(1) penalties. Matter of Diaz-Ruacho, 24 I&N Dec. at 51.
While the respondent’s timely appeal from the Immigration Judge’s denial
of her other applications for relief was pending before the Board, Matter
of Diaz-Ruacho was explicitly reversed by the new rule. See 73 Fed. Reg.
at 76,928 (Supplementary Information). The final rule substantially revisedCite as 25 I&N Dec. 143 (BIA 2009) Interim Decision #3664
3 The new voluntary departure regulation explicitly places the burden on aliens to provide
to the Board, within 30 days of filing an appeal, affirmative proof that the voluntary
departure bond was paid. 8 C.F.R. § 1240.26(c)(3)(ii), Nt. Absent timely and sufficient
proof, we will not reinstate the voluntary departure grant. However, the new regulation did
not apply in this case because the Immigration Judge granted the respondent voluntary
departure prior to its effective date.
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8 C.F.R. § 1240.26(c)(3) and added a new subparagraph (c)(4). See 8 C.F.R.
§§ 1240.26(c)(3)–(4), Nt. (2009). Pursuant to the new regulations, an alien’s
“failure to post the required voluntary departure bond within the time required
does not terminate the alien’s obligation to depart within the period allowed
or exempt the alien from the consequences for failure to depart voluntarily
during the period allowed.” 8 C.F.R. § 1240.26(c)(4), Nt. This rule change,
however, did not become effective until January 20, 2009.
The parties request that we reconsider our order reinstating voluntary
departure and clarify whether the respondent is now subject to the section
240B(d)(1) penalties for failing to depart. On reconsideration, we find that
the Immigration Judge’s grant of voluntary departure should not have been
reinstated in this case. Accordingly, we will vacate the voluntary departure
order in our February 18, 2009, decision. We also clarify that the respondent
is not subject to the section 240B(d)(1) penalties for failure to depart.
II. ISSUE
The issue in this case is whether an alien who was granted voluntary
departure by an Immigration Judge before the January 20, 2009, effective date
of the regulatory change and failed to timely post the required voluntary
departure bond is subject to the penalties of section 240B(d)(1) of the Act.
III. ANALYSIS
While her case was before us on appeal, the respondent did not raise any
issue related to voluntary departure. The Department of Homeland Security
(“DHS”), on the other hand, stated in its brief on appeal that it had no evidence
that the respondent had posted the required $500 voluntary departure bond.
The DHS argued that the respondent had forfeited voluntary departure and
requested that we issue an order of removal.3
In our February 18, 2009,
decision, however, we “reinstated” the 60-day period of voluntary departure
that had been granted by the Immigration Judge without further discussion and
added the warnings required under the new voluntary departure rule. We did
not address whether there was still a grant of voluntary departure by the
Immigration Judge to reinstate in light of the fact that the respondent had failedCite as 25 I&N Dec. 143 (BIA 2009) Interim Decision #3664
4 The “Effective Date” provisions in Section VIII of the Supplementary Information
primarily deal with the effective date of the regulation as it pertains to the filing of motions
and the impact of such filings on voluntary departure orders. 73 Fed. Reg. at 76,936
(Supplementary Information).
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to post the voluntary departure bond under the old regulatory scheme and prior
case law; nor did we discuss the effective date provisions of the relevant
regulatory change. See Matter of Diaz-Ruacho, 24 I&N Dec. 47; 8 C.F.R.
§ 1240.26(c)(3) (2008).
The Supplementary Information published with the final voluntary departure
rule clearly states that its provisions are prospective only. 73 Fed. Reg.
at 76,936 (Supplementary Information). Some confusion may arise, however,
from the language stating that “this rule will apply to all cases pending before
EOIR, or adjudicated by EOIR, on the effective date of this rule and any cases
that later come before it.”4
Id. Cases on appeal to the Board are “pending
before EOIR.” The Supplementary Information states, however, that “an alien
who receives a decision by an Immigration Judge granting voluntary departure
on or after the effective date of this rule will be subject to the voluntary
departure bond provisions of this rule as well as all other applicable
provisions.” Id. (emphasis added).
In view of this language, we conclude that the reversal of Matter
of Diaz-Ruacho was not given retroactive effect and that the previous
regulatory provisions, as interpreted by that decision, still govern cases
in which an Immigration Judge granted an alien voluntary departure prior
to the effective date of the new rule. We note that this ruling eliminates
any unfairness to an alien who, prior to the regulatory change, chose not
to post a voluntary departure bond because the Board had ruled in Matter
of Diaz-Ruacho that failing to post the bond would automatically vacate the
grant of voluntary departure, rather than exercise his or her unilateral right
to withdraw the voluntary departure request before the expiration of the
voluntary departure period. See Dada v. Mukasey, 128 S. Ct. at 2319; see also
73 Fed. Reg. at 76,930 (Supplementary Information).
Thus, because the Immigration Judge granted voluntary departure to the
respondent in this case prior to the effective date of the new rule and that grant
was vacated under the prior regulatory scheme, as interpreted by Matter
of Diaz-Ruacho, 24 I&N Dec. 47, when the respondent failed to post the
required bond, there was no voluntary departure order for us to reinstate when
we dismissed her appeal. Id.; 8 C.F.R. § 1240.26(c)(3) (2008). On the facts
now before us, including the undisputed fact that the respondent failed to post
the required voluntary departure bond, we find that voluntary departure should
not have been reinstated. Accordingly, we will vacate that portion of our
February 18, 2009, order reinstating the 60-day voluntary departure period.Cite as 25 I&N Dec. 143 (BIA 2009) Interim Decision #3664
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That decision and the order dismissing the respondent’s appeal remain
otherwise undisturbed.
Further, because the respondent’s situation was controlled by our decision
in Matter of Diaz-Ruacho, she is not subject to the penalty provisions
of section 240B(d)(1) of the Act. Given the effective date of the new rule, its
provisions, which obligate an alien who fails to pay the voluntary departure
bond to nevertheless depart within the voluntary departure period or suffer the
penalties for failing to do so, do not apply to her. 8 C.F.R. § 1240.26(c)(4), Nt.
ORDER: The motion to reconsider is granted.
FURTHER ORDER: The Board’s February 18, 2009, order reinstating
the Immigration Judge’s grant of voluntary departure is vacated, which leaves
the alternate order of removal to Colombia in effect.