Saturday, September 10, 2005

Kanivets: time for voluntary departure is tolled while a motion is pending

Filed 09/07/05, No. 03-3569
Kanivets v. Atty Gen USA
Kanivets v. Gonzales

The Third Circuit ruled that the time allotted for voluntary departure is tolled pending a ruling on a motion for rehearing. This is significant because if the time is not tolled, the time expires and certain penalties go into effect that can defeat the motion that is still pending.

Voluntary departure is an agreement to allow someone to leave the United States without receiving a deportation order, but there are severe penalties if the person does not leave before the agreed date. (For this reason, someone who is ordered deported but refuses to leave is in a better position than someone who agrees to voluntary departure and refuses to leave.)

The issue here arises because courts understandably cannot issue decisions to motions right away. Sometimes, it takes weeks or months and in this case, it took eight months. The immigrant received a deadline for voluntary departure. If he failed to leave by the deadline, he is blocked from getting green card status even if he were otherwise eligible. If he left under the terms of the voluntary departure order, he would lose his ability to reopen the case.

So, if courts could issue rulings the same day they receive the motions, the answer would be simple -- file the motion to reopen before the voluntary departure deadline and get the result right away. But, what if the immigrant files the motion but the voluntary departure deadline expires in the months it takes for the court to rule on the motion? Should the court say the motion loses because green card status in not available after the voluntary departure deadline passed?

The Third Circuit said no, the deadline for voluntary departure automatically extends to allow the court to rule on the motion to reopen (which means the option of getting green card status is still possible).

This avoids the unfair result of losing your way of avoiding deportation just because the court takes months to rule on your motion. Hard to believe, but immigration courts had regularly imposed just such an unfair result in the hotly-disputed decision of Matter of Schaar. This case is part of a series of decisions in which circuit courts are trying to avoid the unfair results of the BIA's ruling in the Schaar case. Let's hope the trend continues and that one day the BIA changes its position.

Update: The Ninth Circuit agrees and ruled that the extension of the deadline is automatic, even without filing a request for a stay. See Barroso v. Gonzales, No. 03-72552 (9th Cir. Nov. 18, 2005)


Anonymous Anonymous said...

Quick Question.

If someone is given the option of voluntary departure by the judge in the court room and accepts but has not made the 500 dollar bond payment yet, and wants to appeal the case, is it possible to do both? WIll the decision to accept the voluntary departure option affect the appeal?

6:19 PM  

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