Supreme Court’s Decision on Voluntary Departure
By admin ~ October 16th, 2008. Filed under: General.
Supreme Court’s Decision on Voluntary Departure
(07/15/08)
Recently the U.S. Supreme Court reached a decision regarding a person’s right to voluntarily depart the country. Normally, immigration services allows a person to file a Motion to Reopen (explain why new information would change the case) within 90 days of the final order for departure. However, individuals who wish to leave the country voluntarily must do so within 30 or 60 days of application, or risk being disqualified to receive certain benefits. They include Cancellation of Removal (those wishing to remain in the U.S.), Adjustment of Status (part of Green Card process), Change of Status (change from one nonimmigrant status to another nonimmigrant status), Registry (people who’ve been in U.S. since 1/1/72), and Voluntary Departure for 10 years. Furthermore, after a person has left the country, they can no longer file a Motion to Reopen. Because the government generally does not rule on Motions to Reopen before the voluntary departure period is over, those who are granted voluntary departure may not have a way to pursue their right for relief after the final order is issued.
Hence, the Supreme Court set about to remedy the situation. They said that individuals must be allowed to withdraw their request for voluntary departure before the period expires. But, the date of departure remains the same even if they filed a Motion to Reopen. Therefore, if the Motion to Reopen is not ruled on before the assigned date of departure, one must leave the country or risk the consequences of overstaying.
At present, it is not clear if the Motion to Reopen will automatically be equivalent to a Request to Withdraw the Voluntary Departure. However, the government is considering this proposition. Therefore, until this matter is resolved, individuals might want to file a Petition to Withdraw Voluntary Departure coupled with a Motion to Stay their Removal at the same time they file a Motion to Reopen.
There were some Circuit Courts (Third, Eighth, Ninth and Eleventh) that ruled on the case and determined that, during the time the Motion to Reopen was pending, the 60 or 90 day period was suspended. However, since the Supreme Court ruled against this practice, people in these districts may be affected. If you live in one of these areas and filed a Motion to Reopen prior to the Supreme Court decision was handed down, contact an experienced immigration attorney for clarification.
