Friday, November 17, 2006

Curi (not precedential): Whoops, Missed the BIA's Recent Ruling

In Curi v. Gonzales, No. 05-2563 (3d Cir. Nov. 17 2006) (not precedential), the Third Circuit did not realize that just two days earlier, the BIA made a contrary conclusion on the same legal issue in Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006).

The BIA ruled that an alien who fails to post the voluntary departure bond required by section 240B(b)(3)of the Immigration and Nationality Act, 8 U.S.C. ยง 1229c(b)(3) (2000), is not subject to penalties for failure to depart within the time period specified for voluntary departure. So if you take voluntary departure at the end of the case and never pay the required bond, the rule is you never qualified for voluntary departure and if you do not leave, you will not suffer the penalty of (for example) not being able to seek cancellation of removal for ten years.

The Third Circuit got the case on November 7. The BIA interjected its ruling in another case on November 15. The Third Circuit ruled (arguably incorrectly) on November 17. Whoops! Hope the Third Circuit realizes its mistake, or the attorney in that case informs them.

Any hope that the Third Circuit is reading this blog??


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