In my last article, I cautioned against pursuing adjustment of status with an expired voluntary departure date. The “Shaar-bar” – named after the 1996 Board of Immigration Appeals case In re Shaar creating the law – will bar a person from adjustment of status for ten years if they did not depart the country by the date granted by the judge.

Just because the immigration judge denied a case does not mean a person is forced to leave the country without a chance at appealing the denial. Every person in this country has rights of appellate review, as guaranteed by the U.S. Constitution. While doing so, however, it is imperative to not trigger the “Shaar-bar” in the process.

While appealing a denial to the Board of Immigration Appeals, the voluntary departure date is extended until the appeal is decided. If the BIA affirms the denial, an additional 30 days to leave the United States is typically granted.

But what if the person disagrees with the BIA’s denial and wants to appeal to a higher court? In California, people who want to challenge a BIA denial may petition the Ninth Circuit Court of Appeals for review of the case. When doing so, the grant of voluntary departure from the immigration judge and BIA cannot be forgotten in the process.

Until last year, when a person petitioned the Ninth Circuit for a review of their case, the date set for voluntary departure was extended until the appeal was decided. Then, in March 2003, the law was radically changed when the Ninth Circuit said they did not have the authority to extend the departure date pending their review. Zazueta-Carrillo v. Ashcroft (322 F.3d 1166, 9th Cir. 2003). One of the reasons for their decision was due to the 1996 changes in the immigration laws in 1996, permitting a person to pursue an appeal after they have departed the country.

Fortunately, just because a person may pursue their appeal from outside the country does not mean they must go in order to avoid the serious consequences of the Shaar-bar. In September of 2003, the Ninth Circuit said that it may stay the voluntary departure order while the appeal is pending. El Himri v. Ashcroft, No. 03-71152 (9th Cir. Sep. 19, 2003). While the Ninth Circuit may not extend the departure date, they do have the authority to stay the date of departure.

This stay is not automatic, however. It must be demonstrated to the court that there is either (1) a probability of success on the merits and possibility of equitable injury or (2) that serious legal questions are raised and the balance of hardships tips sharply in petitioner’s favor. If granted, the person is allowed to stay in the U.S. while the Ninth Circuit makes a decision on the case and they will not be faced with a ten-year bar from future adjustment of status.

People wishing to exhaust their appellate rights should seek the advice of a well-informed immigration attorney. All too often, the unwary attorney has overlooked recent changes in the law, seriously comprising their client’s rights by ignoring a voluntary departure date when preparing their appeal.