In re Cordova
| Decision Date | 06 August 1999 |
| Docket Number | File A91 432 440.,Interim Decision No. 3408. |
| Citation | 22 I&N Dec. 966 |
| Parties | In re Julio Antonio CORDOVA, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In an oral decision dated March 26, 1998, an Immigration Judge denied the respondent's request for voluntary departure and ordered him removed from the United States. The respondent's appeal will be sustained, and the record will be remanded to the Immigration Judge.
The respondent appeared before the Immigration Judge for his initial hearing on March 26, 1998. The respondent, through counsel, admitted the allegations, conceded removability under section 237(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B) (Supp. II 1996), as a nonimmigrant who remained longer than permitted, and designated Peru as the country for removal. He further stated that he wanted to apply for cancellation of removal and voluntary departure. However, the Immigration and Naturalization Service submitted evidence of a conviction for which the respondent served 321 days in jail. After an off-the-record discussion, the parties conceded that the respondent was not eligible for cancellation of removal, as he was precluded from establishing good moral character under section 101(f)(7) of the Act, 8 U.S.C. § 1101(f)(7) (1994). The respondent did not object to this determination and made no further attempts to apply for this relief, i.e., he did not request the opportunity to file an application for relief or request a continuance of the proceedings. Without further inquiry or discussion regarding the requirements of section 240B(a) of the Act, 8 U.S.C. § 1229c(a) (Supp. II 1996), the Immigration Judge concluded that the respondent was also ineligible for voluntary departure because he could not establish good moral character.
On appeal, the respondent argues that the Immigration Judge erred in denying voluntary departure. Specifically, the respondent contends that the Immigration Judge erred in requiring him to establish good moral character, as this is not a requirement for voluntary departure under section 240B(a) of the Act.
In response, the Service concurs with the Immigration Judge's findings and urges this Board to adopt his decision.
Under section 240B(a) of the Act, an alien may be granted voluntary departure for a period of up to 120 days without being required to establish good moral character if the relief is granted prior to the completion of such proceedings. Matter of Arguelles, 21 I&N Dec. 3399 (BIA 1999). Regulations have been promulgated which provide further requirements for granting voluntary departure under section 240B(a) of the Act. Under the regulations set forth at 8 C.F.R. § 240.26(b)(1)(i) (1998), an alien is eligible for voluntary departure pursuant to section 240B(a) of the Act if he or she:
(A) Makes such request prior to or at the master calendar hearing at which the case is initially calendared for a merits hearing (B) Makes no additional requests for relief (or if such requests have been made, such requests are withdrawn prior to any grant of voluntary departure pursuant to this section);
(C) Concedes removability;
(D) Waives appeal of all issues; and
(E) Has not been convicted of a crime described in section 101(a)(43) of the Act and is not deportable under section 237(a)(4).
There is no contention that the respondent has been convicted of a crime described in section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (1994 & Supp. II 1996), or is deportable under section 237(a)(4) of the Act. Accordingly, the only issues relating to the respondent's eligibility for this relief are whether he made his request for voluntary departure at his master calendar hearing, whether he made additional requests for relief, whether he is barred from eligibility for voluntary departure under section 240B(a) because he filed an appeal, and whether he was adequately advised of the conditions under which he could apply for voluntary departure under section 240B(a) of the Act.
In order to be eligible to apply for voluntary departure under section 240B(a) of the Act without establishing good moral character, an alien must make "such request prior to or at the master calendar hearing at which the case is initially calendared for a merits hearing." 8 C.F.R. § 240.26(b)(1)(i)(A); see also Matter of Arguelles, supra. Neither the Act nor the regulations define a "master calendar hearing." However, we understand such a hearing to be a preliminary stage of the proceedings at which, even though little or no testimony is taken, the Immigration Judge has great flexibility to identify issues, make preliminary determinations of possible eligibility for relief, resolve uncontested matters, and schedule further hearings. In addition, this is the stage of the proceedings at which the Immigration Judge generally ensures that an alien has been advised of his or her rights under the Act and applicable regulations, including rights to apply for relief, and has been given notice and warnings regarding his or her obligation to attend future hearings, file applications and evidence in a timely manner, and otherwise cooperate with orders of the Immigration Court.
The Immigration Judge erred in concluding that the respondent could not apply for voluntary departure once removal proceedings had been initiated under section 240 of the Act, 8 U.S.C. § 1229a (Supp. II 1996). Neither party disputes that the respondent requested voluntary departure at his master calendar hearing.1 Moreover, the record indicates that this was his initial hearing, and no separate merits hearing was scheduled. Therefore, the respondent requested voluntary departure at the appropriate point in the proceedings and should have been allowed to pursue this relief.
An alien may make no other requests for relief or must withdraw any previously made requests for relief in order to be eligible for voluntary departure under section 240B(a) of the Act. 8 C.F.R. § 240.26(b)(1)(i)(B); see also Matter of Arguelles, supra. In this case, the respondent stated that he wanted to apply for cancellation of removal. This request, however, should not preclude him from eligibility for voluntary departure under section 240B(a) of the Act. The respondent presented no objection on the record to the Immigration Judge's determination that he was ineligible for cancellation of removal and, importantly, he took no further actions, such as submitting an application or requesting a continuance, to do so.2 See 8 C.F.R. § 240.20(a) (1998). Even if this inquiry about his eligibility for cancellation of removal is considered a "request for relief," his failure to pursue it should be seen as a withdrawal of such request before the Immigration Judge, particularly where, as discussed below, the respondent was not advised that he could apply for voluntary departure under section 240B(a). Therefore, under the circumstances, we find that this respondent should not be prevented from seeking voluntary departure based on his inquiry about cancellation of removal and his failure to formally withdraw the request.
To be eligible for voluntary departure under section 240B(a) of the Act, an alien must also waive appeal of all issues. 8 C.F.R. § 240.26(b)(1)(i)(D); see also Matter of Arguelles, supra. In this case, however, the Immigration Judge erred in failing to even consider the respondent's potential eligibility for voluntary departure under section 240B(a) of the Act, applying instead the more stringent standard for section 240B(b).3 Thus, the Immigration Judge deprived the respondent of a meaningful opportunity to apply for a form of relief for which he was, in fact, eligible. The respondent's attempt to correct the Immigration Judge's error through an appeal should not cause him to lose the right to apply for voluntary departure simply because his request was improperly denied. Therefore, he should be given the opportunity to apply for the correct form of relief. See Waldron v. INS, 17 F.3d 511 (2d Cir. 1993), cert. denied, 513 U.S. 1014 (1994).
We do not find that the respondent's appeal from the denial of his request for cancellation of removal is inconsistent with his position that he is entitled to seek relief under section 240B(a) of the Act. The fundamental problem presented is confusion concerning both the rights and the requirements contained in the regulations that govern voluntary departure. If the respondent had been properly informed of his eligibility for voluntary departure and the requirement that he must withdraw his request for any other forms of relief,...
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