By: Attys. Robert L. Reeves and Nancy E. Miller

Q. I was in immigration court in 1996. The immigration judge denied my application for asylum but gave me voluntary departure. I did not leave as requested. Now I am married to a United States citizen. He filed a marriage petition for me. Will I have to leave the U.S. to get my green card?

A. Citizenship and Immigration Services (CIS, formerly INS) is the only agency that can make decisions on marriage petitions. That is also the agency that makes decisions on applications for green cards for someone who is in the United States and has never been in deportation or in removal proceedings. Once an alien is placed in proceedings, the CIS has no authority to adjudicate (decide) the application for a green card (with certain exceptions). From that point on, usually the only one in the United States who can adjudicate the green card application is the immigration judge.

If the alien acquires a new basis for a green card after the judge makes a decision on the case, it is necessary to file a motion to reopen in order to get the new application to the court. At that point, two concerns exist. First, motions to reopen must usually be filed no later than 90 days from the end of the hearing. Second, where the alien is granted voluntary departure and fails to depart within the specified time period, he is ineligible to apply for adjustment of status, change of status, suspension of deportation or cancellation of removal for five years for deportation cases or ten years under removal cases.

This situation was discussed in a recent Ninth Circuit case, Velezmoro v. Ashcroft. Mr. Velezmoro received voluntary departure but did not leave the United States. He filed a motion with the Board of Immigration Appeals (BIA) to reopen his case based on his recent marriage. The BIA denied the motion because the five-year bar for violating voluntary departure had not expired at the time of filing. By the time the case reached the Ninth Circuit, the five years had run. The Ninth Circuit held that the period of ineligibility runs from the date the voluntary departure expires or the date of unlawful reentry, whichever is later. After the period of ineligibility has expired, the alien is no longer barred (forbidden) from applying for adjustment or other relief.

In reaching this decision, the Ninth Circuit held that failure to timely depart under voluntary departure carried a punishment of ineligibility for certain relief for a certain amount of time. After the alien had Aserved his time@, he should be able to apply for that relief. To hold otherwise would be to turn the ban into a much longer period of ineligibility, according to the Velezmoro court.

The Velezmoro court did not specifically address the issue of how to get back into court after the expiration of the 90 days. There are exceptions to the 90-day rule. Motions to reopen may be filed after 90 days if the government lawyers join in the motion. Motions may also be filed in asylum or withholding cases where there are changed circumstances in the country of nationality that could not have been discovered or presented before. Changes in law making relief available may also be the basis for a motion to reopen filed after the 90 days have expired. Finally, the court may reopen the case based on exceptional circumstances. If none of these exceptions apply, it may be necessary to bring the issue to the Ninth Circuit Court of Appeals.

Whether your case can be reopened and whether you are still ineligible for relief under the voluntary departure bar is something you should discuss with an attorney who is knowledgeable and experienced in immigration law.