PART I of II:
Overstaying an immigration judge’s grant of voluntary departure can lead to perilous consequences. Immigrants are often shocked to learn that although they are eligible for adjustment of status, they are barred from adjusting status for ten years because they did not depart the country on the day granted by the immigration judge.
Voluntary departure – the alternative to forced removal from the country – allows people who have lost their court cases to leave the country at their own expense without the penalties of being deported. Failure to leave by the scheduled departure date, absent exceptional circumstances, will trigger a statutory ten-year bar against future adjustment of status. This is the legacy of the 1996 Board of Immigration Appeals decision In re Shaar, 21 I&N Dec. 541 (BIA 1996).
Shaar reasoned that voluntary departure is a privilege and not a means to allow otherwise deportable persons to remain in the U.S. for an indefinite period of time until they are eligible for some other form of relief. For many people who have lived here many years and now have a U.S. citizen spouse, they are eligible to become a permanent resident even if they have lived here illegally. Not so if they ever received a grant of voluntary departure from an immigration judge. Although married to a U.S. citizen and eligible to apply for a green card, they are barred from reopening their cases for ten years, all because the Shaar decision.
In those cases where an appeal was filed to the Board of Immigration Appeals (aka “BIA”) challenging the immigration judge’s denial of a case, the scheduled date of departure set by the immigration judge is tolled. This means that the time to depart has been extended until the BIA makes its decision. If the BIA were to uphold the immigration judge’s decision, the person would be granted another 30 days to voluntarily depart the country. If nothing is done to extend that date and they remain past that date, the same statutory bars are in place.
Many lawyers will falsely tell their clients that all they need to do is file a motion to reopen their case, informing the court or the BIA that they are eligible for adjustment of status through their citizen spouse. This is not the case. Merely filing a motion to reopen does not allow the person to remain in U.S. pending a decision on the motion. A trap for the unwary, the consequences are all too serious as now the person is barred for ten years from pursuing that adjustment of status in the U.S.
As long as the Shaar case is controlling, any grant of voluntary departure by an immigration judge or the BIA should be cautiously reviewed by a competent immigration lawyer before proceeding with future applications. If time remains, the voluntary departure date may be extended while reopening the case. Otherwise, a strategy must be found to overcome the Shaar bar so that the person is not led into this complex legal trap.
Part II of this article will explore the unique situation of maintaining the voluntary departure grants and avoiding the “Shaar-bar” during an appeal to the Ninth Circuit Court of Appeals.