Motion to extend voluntary departure before deadline can excuse not departing

In Barrios v. Attorney General, No. 03-3211 (3d Cir. Feb. 25, 2005), the Third Circuit ruled that if an immigrant files a motion to reopen a removal proceeding before the deadline to leave under voluntary departure and the motion to reopen is not decided before the deadline arrives, that is an exceptional circumstance that excuses the immigrant for not leaving. Therefore, it is still possible for the immigrant to receive certain types of relief (including obtaining green card status) despite failing to leave by the deadline.

In Barrios, the immigrant married, filed all necessary papers to ask for a green card, and filed a motion to reopen before the voluntary departure deadline came. The Third Circuit was not even concerned that the immigrant failed to ask for an extension of the voluntary departure deadline!