A big obstacle in the road of voluntary departure.

By: Jonathan MontagJ.D.

Sometimes I am kind of naive. Having just returned from a conference of immigration lawyers, I expected lots of discussion and commentary on some recent 9th Circuit cases. Instead, I heard nothing. I will address them here. Today, Corro-Barragan v. Holder,  decided on June 10, 2013.

The case concerns voluntary departure. Voluntary departure is a common relief in removal proceedings. If one is granted voluntary departure, the person is allowed to leave the United States in lieu of being removed. The benefit, though not that useful to most, is useful to some, particularly if the person has a means of coming back to the United States. The reason is, if a person is removed, he or she usually cannot come back to the United States for between five and twenty years, and sometimes forever. Usually, the penalty is that a removed person cannot come back for five or ten years. Relevant in regard to the voluntary departure in Corro-Baragan is the ten year prohibition. INA § 212(a)(9)(A)(ii).

The voluntary departure statute under consideration in Corro-Barragan is INA § 240B(b)(1), which states:

The Attorney General may permit an alien voluntarily to depart the United States at the alien’s own expense if, at the conclusion of a proceeding under section 240 , the immigration judge enters an order granting voluntary departure in lieu of removal and finds that-

(A) the alien has been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served under section 239(a);

(B) the alien is, and has been, a person of good moral character for at least 5 years immediately preceding the alien’s application for voluntary departure;

(C) the alien is not deportable under section 237(a)(2)(A)(iii) or section 237(a)(4) ; and

(D) the alien has established by clear and convincing evidence that the alien has the means to depart the United States and intends to do so.

The issue in the case was subparagraph (A), the requirement of physical presence for at least one year immediately preceding the date the notice to appear was served under section 239(a). (The issue of the fairness of making the cut-off the date an immigration law enforcement officer server the charging documents initiating removal proceedings rather than the date the charging document was filed with an immigration court, which actually initiates removal proceedings, which could be years different, was not an issue in the case.)

Ms. Corro-Barragan entered the United States in 1991. She left the United States and came back twice after she first entered in 1991, both times briefly. The second time she left and came back was in 2006. Immigration officials served her with a Notice to Appear immediately after she came back in 2006. Thus, in the year before she was served the Notice to Appear, she was away for a brief period. In removal proceedings, Ms. Corro-Barragan sought Cancellation of Removal for Certain Nonpermanent Residents, INA § 240A(b)(1), and voluntary departure. Cancellation requires ten years of physical presence, but a statute provides an exception to strictly adhering to the ten year requirement for brief departures. See INA § 240A(d)(2). The Ninth Circuit decided that under the plain meaning of the voluntary departure statute, Ms. Corro-Barragan was not physically present in the United States for the year because she was away for the brief period before the day she came back, which was also the day she got caught. The exceptions at INA § 240A(d)(2) simply did not apply to voluntary departure. Thus, the court held, she was properly denied voluntary departure.

In reality, voluntary departure was of little use to Ms. Corro-Barragan. Her coming and going created a ten year bar for her under INA § 212(a)(9)(C)(i)(I) that she cannot waive, so with or without voluntary departure, she cannot come back for ten years. However, this reading of the statute does create a huge problem for some people who could actually benefit from voluntary departure.

As an example, suppose an alien is in the United States as a non-immigrant skilled worker, an H-1B worker. Suppose he has been here for two years. After returning from a brief trip abroad, he goes back to work and finds out he is being laid off. Immigration officials learn of this and place him in removal proceedings for being out of status. This laid-off worker hasa new job offer and tries to get permission to work for a new employer, but for some technical reason, this application is denied, perhaps because he took too long to find the new job or he made some technical error in his paperwork. (There are strict requirements about being in status to extend or change status.) He does not want to simply leave the country in lieu of removal proceedings (another form of voluntary departure), as he wants to continue to fight about reinstating his status. He fails in this fight and now is ready to accept voluntary departure under INA § 240B(b)(1). This, he reckons, is all he can get and since he has a job offer, he can get a new visa at a U.S. consulate and come back. However, because of his brief trip abroad before he was placed in removal proceedings, under Corro-Barragan, he is ineligible for voluntary departure and instead gets removed. His plan to get a new visa and come back are thwarted by the unavailability of voluntary departure which results in his removal and a ten-year prohibition on return because of having been removed.

This is not to say that the Corro-Barragan court should have read an exception into the one year physical presence rule at INA § 240B(b)(1)(A), but it is to say that when analyzing a case and deciding whether to fight removal, what one might consider a brief, innocent, and perfectly legal trip outside the country, perhaps as innocent as a day trip to Niagara Falls or to buy a blanket in Tijuana, could have huge, hitherto unanticipated consequences. Posted June 30, 2013.


 

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