OCAMPO

Interim Decision #3429

In re Francisco OCAMPO-Ugalde, Respondent

File A76 376 387 - Los Angeles

Decided March 24, 2000

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Voluntary departure may not be granted prior to the completion of removal proceedings

without an express waiver of the right to appeal by the alien or the alien’s representative.

Pro se

Before: Board Panel: FILPPU, MATHON, and MOSCATO, Board Members.

FILPPU, Board Member:

In a decision rendered February 12, 1998, the Immigration Judge found

the respondent removable as charged and granted him voluntary departure.

The respondent has appealed that decision. The appeal will be sustained,

and the record will be remanded to the Immigration Judge for further pro-

ceedings.

I. BACKGROUND

The respondent, a native and citizen of Mexico, entered the United

States without inspection on or about June 1, 1985. On November 21, 1997,

the Immigration and Naturalization Service issued a Notice to Appear

(Form I-862), commencing these removal proceedings.

The respondent appeared with counsel before the Immigration Judge at

a master calendar hearing on January 13, 1998. At that hearing, counsel

conceded removability and requested a continuance in order to review the

respondent’s eligibility for relief. Counsel also indicated that the respondent

would seek only voluntary departure and would withdraw the pending

application that he had previously filed.

On February 12, 1998, the respondent again appeared before the

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Immigration Judge. Counsel stated that he had reviewed with the respon-

dent the options available to him and that the respondent would seek only

voluntary departure. After establishing the respondent’s eligibility for this

form of relief, including the fact that he had not been convicted of any

crimes, the Immigration Judge granted him a period of 120 days’ voluntary

departure, without opposition from the Service. The Immigration Judge

informed the respondent that this was the maximum period of departure

time allowed.

The Immigration Judge then concluded proceedings by serving a copy

of the written order on the parties. The Immigration Judge’s written order

indicates that the respondent was granted 120 days’ voluntary departure,

that his other pending application was withdrawn, that the parties had

waived appeal, and that no further bond would be required.

On March 13, 1998, the respondent filed a timely appeal in which he

alleged that the Immigration Judge abused her discretion by denying his

“application for relief.” In a lengthy appellate brief, the respondent argues

that he is eligible for cancellation of removal and asks the Board to overturn

the Immigration Judge’s denial of his application for that form of relief. The

Service has not responded to the appeal.

II. ISSUE

The issue in this case is whether voluntary departure may be granted

prior to the completion of removal proceedings without an express waiver

of the right to appeal by the alien or the alien’s representative.

III. JURISDICTION

Before we consider the respondent’s arguments in support of his

appeal, we must determine whether his appeal is properly before us.

Because the respondent was granted relief that is conditioned on a waiver

of the right to appeal, we must ascertain whether such a waiver occurred.

A. Types of Voluntary Departure

In removal proceedings, an Immigration Judge may grant voluntary

departure either at the master calendar stage of proceedings or at their com-

pletion. 8 C.F.R. § 240.26 (1999). The Immigration Judge may also grant

voluntary departure at any time prior to the completion of proceedings if the

Service stipulates to a grant. 8 C.F.R. § 240.26(b)(2).

There is a distinct difference between the form of voluntary departure

available at the outset of proceedings and that available at their conclusion.

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See Matter of Arguelles, 22 I&N Dec. 811 (BIA 1999). When voluntary

departure is sought at the outset of proceedings, the standards for eligibili-

ty are less demanding and the posting of a bond is not required. See 8 C.F.R.

§§ 240.26(b)(1), (b)(3), (c)(1), (c)(3); see also sections 240B(a), (b) of the

Immigration and Nationality Act, 8 U.S.C. §§ 1229c(a), (b) (Supp. II 1996).

If voluntary departure is granted prior to the completion of removal pro-

ceedings, the Immigration Judge may grant a period of time up to 120 days,

as opposed to the 60-day limit when voluntary departure is sought at the

completion of proceedings. 8 C.F.R. § 240.26(e); see also sections

240B(a)(2), (b)(2) of the Act.

In the respondent’s case, voluntary departure was granted at the outset

of proceedings, for a period of 120 days, and without a bond being required.

The record thus reflects that the Immigration Judge granted the respondent

voluntary departure pursuant to section 240B(a) of the Act and its imple-

menting regulations.

B. Eligibility for Voluntary Departure

The regulations set forth preconditions that must be met before the

Immigration Judge may grant voluntary departure prior to the completion

of removal proceedings. Those preconditions are as follows: (1) the volun-

tary departure request must be made prior to or at the master calendar hear-

ing at which the case is initially calendared for a merits hearing; (2) the

alien must not seek any other form of relief and must withdraw any out-

standing requests for relief; (3) the alien must concede removability; (4) the

alien must waive appeal of all issues; and (5) the alien must not have been

convicted of certain crimes described in the Act. 8 C.F.R. § 240.26(b)(1)(i);1

see also Matter of Arguelles, supra. As necessary, the Immigration Judge

may impose discretionary conditions on the grant of voluntary departure,

1

The regulation at 8 C.F.R. § 240.26(b)(1)(i) provides as follows:

Prior to completion of removal proceedings—(1) Grant by the immigration judge.

(i) An alien may be granted voluntary departure by an immigration judge pursuant to

section 240B(a) of the Act only if the alien:

(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 sec-

tion);

(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). (Emphasis added.)

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separate from the enumerated preconditions, to ensure that the alien departs

the United States within the time specified. 8 C.F.R. § 240.26(b)(3).

We observe that, in the respondent’s case, all but one of these precon-

ditions have clearly been met. The respondent indicated at the master cal-

endar hearing that he intended to seek voluntary departure.2 He made no

additional requests for relief and, through counsel, expressly withdrew his

only pending application. The respondent conceded removability. He estab-

lished to the satisfaction of the Immigration Judge that he had never been

convicted of any crimes. Thus, the only precondition that was not clearly

satisfied on the record was the respondent’s waiver of his right to appeal.

See 8 C.F.R. § 240.26(b)(1)(i)(D).

C. Waiver of the Right to Appeal

The Immigration Judge clearly assumed that the respondent had waived

appeal. The record, however, is silent on this matter. We observe that at no

time did the Immigration Judge or either of the parties raise the issue of

appeal or discuss on the record the respondent’s right to appeal.

We appreciate that the Immigration Judge would not have granted this

form of relief unless she was satisfied that the respondent fully intended to

waive appeal. We also appreciate the administrative economies that

Immigration Judges rightfully pursue in the course of managing their dock-

ets, and that this form of voluntary departure was created, in whole or in

part, to conclude cases promptly and decisively. See Matter of Cordova, 22

I&N Dec. 966 (BIA 1999). Nonetheless, given the regulatory requirement

that the right to appeal be waived and the due process implications of con-

struing an “implicit” waiver of the right to appeal, as well as the jurisdic-

tional implications of a waiver itself, we find it critical that the record must

clearly demonstrate that the right to appeal was actually, and not merely

constructively, waived by the alien. See, e.g., section 240(c)(4) of the Act, 8

U.S.C. § 1229a(c)(4) (Supp. II 1996) (“If the immigration judge decides

that the alien is removable and orders the alien to be removed, the judge

shall inform the alien of the right to appeal that decision . . . .”); United

States v. Gonzalez-Mendoza, 985 F.2d 1014, 1017 (9th Cir. 1993) (dis-

cussing the importance of not presuming that a fundamental right has been

waived); cf. Matter of Shih, 20 I&N Dec. 697 (BIA 1993) (advising that a

2

We are cognizant that, although the respondent clearly indicated his interest in volun-

tary departure at his first appearance before the Immigration Judge, he did not actually

request that relief until his hearing reconvened at a later date. We do not find this circumstance

problematic, however, because the rescheduling was treated by the parties and the

Immigration Judge as a continuation of the master calendar hearing.

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motion alleging that a waiver of appeal was not knowingly and intelligently

made should be filed with the Immigration Judge) (dictum).

To that end, we believe it prudent and necessary for Immigration

Judges to advise respondents, on the record, that the right to appeal must be

waived as a precondition to receiving this form of voluntary departure. See

Matter of Cordova, supra. The only instance in which an Immigration

Judge might safely forego such an oral notification is when the record con-

tains a written stipulation or comparable documentary evidence wherein the

respondent, or the respondent’s counsel, expressly waives appeal as part of

establishing that all the regulatory requirements for this form of voluntary

departure have been satisfied. Accordingly, we hold that, without an oral

notice regarding the waiver of the right to appeal or a written attestation

reflecting the respondent’s awareness of this requirement, an Immigration

Judge lacks the authority to grant voluntary departure prior to the comple-

tion of proceedings. Because the record does not establish that the respon-

dent waived appeal, the respondent’s appeal is properly before us.

IV. ELIGIBILITY FOR RELIEF

On appeal, the respondent contends that the Immigration Judge improp-

erly denied him relief in the form of cancellation of removal. The record

reflects, however, that the respondent did not file such an application and had

never sought that form of relief before the Immigration Judge. Furthermore,

the record indicates that the respondent requested only voluntary departure.

The respondent’s argument is therefore without merit. If there were no other

issues in this case, the respondent’s appeal would qualify for summary dis-

missal as contemplated by 8 C.F.R. § 3.1(d)(1-a)(D) (1999).

The respondent does not contest his grant of voluntary departure.

Nonetheless, as we have observed, the Immigration Judge did not have the

authority to grant him that relief. Given the significance of this procedural

defect, the respondent’s apparent eligibility for voluntary departure, and the

ramifications for his right to appeal, we will remand the record to the

Immigration Judge to permit the respondent to reapply for voluntary depar-

ture in accordance with the requirements set forth in the regulations.3

ORDER: The appeal is sustained.

FURTHER ORDER: The Immigration Judge’s order of February

12, 1998, is vacated, and the record is remanded to the Immigration Court

for further proceedings consistent with the foregoing opinion.

Should the respondent elect not to seek this form of voluntary departure, the Immigration

3

Judge may entertain other requests for relief and conduct proceedings accordingly.

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