In re Eloy ARGUELLES-Campos, Respondent
File A73 000 231 - San Diego
Board of Immigration Appeals
Decided June 7, 1999
Interim Decision #3399
U.S. Department of Justice
Executive Office for Immigration Review
(2) An alien who applies for voluntary departure at the conclusion of removal proceedings pursuant to section 240B(b) of the Act must demonstrate, inter alia, both good moral character for a period of 5 years preceding the application for relief and the financial means to depart the United States, but an alien who applies before the conclusion of the proceedings pursuant to section 240B(a) is not subject to those requirements.
(3) Although an alien who applies for voluntary departure under either section 240B(a) or 240B(b) of the Act must establish that a favorable exercise of discretion is warranted upon consideration of the factors set forth in Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972), which governed applications for voluntary departure under former section 244(e) of the Act,
(4) An alien who had been granted voluntary departure five times pursuant to former section 244(e) of the Act and had returned each time without inspection was eligible to apply for voluntary departure in removal proceedings under section 240B, because the restrictions on eligibility of section 240B(c), relating to aliens who return after having previously been granted voluntary departure, only apply if relief was granted under section 240B.
Lisa Galliath, Esquire, El Cajon, California, for respondent
Monica Mubaraki, Assistant District Counsel, for the Immigration and Naturalization Service
Before: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, GUENDELSBERGER, JONES, SCIALABBA, and MOSCATO, Board Members. Concurring Opinion: GRANT, Board Member, joined by SCHMIDT, Chairman. Concurring and Dissenting Opinion: ROSENBERG, Board Member.
JONES, Board Member:
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is an adult single male native and citizen of Mexico, who last entered the United States without inspection on March 25, 1997. Previously, the respondent had entered the United States without inspection five times, including as recently as March 23, 1997, after voluntarily departing the United States five times. The respondent was placed in removal proceedings after the police stopped his car on May 20, 1997, and gave him a ticket for speeding and for driving without a license. The respondent testified that he had been driving in the United States without a license for 3 1/2 years and had been stopped once before for driving without a license.
The Immigration Judge denied the respondent‘s application for voluntary departure in the exercise of discretion. The Immigration Judge noted that the respondent has two United States citizen children and volunteers at his church. However, the Immigration Judge found the adverse factors in the respondent‘s case to greatly outweigh his equities. Weighing most in the Immigration Judge‘s decision was the fact that the respondent had already voluntarily departed the United States fives times, only to reenter five times without insрection. The Immigration Judge also noted the respondent‘s traffic violations, including speeding and driving without a license for an extended period of time.
While we agree with the Immigration Judge‘s decision to deny the respondent voluntary departure in the exercise of discretion, we disagree with the Immigration Judge‘s statement of the current law with respect to voluntary departure. The Immigration Judge stated that in order to demonstrate statutory eligibility for voluntary departure, an alien must show that he is willing to leave the country, has the immediate means to depart, and has been a person of good moral character for either 5 or 10 years, depending upon the ground of deportability or removability involved. Such requirements, set out in section 244(e) of the Act,
A. Relief Available in Lieu of Removal Proceedings or at Two Distinct Times During Removal Proceedings
Under section 240B(a) of the Act, an alien may apply for voluntary departure either in lieu of being subject to proceedings under section 240 of the Act,
If the alien applies for voluntary departure before the conclusion of the proceedings, as the respondent has done in this case, he must make the request prior to or at the master calendar hearing at which the case is initially calendared for a merits hearing. It is not necessary that the alien
In the alternative, if the alien decides to apply for voluntary departure at the conclusion of the removal proceedings under section 240B(b) of the Act, he may do so after the case is initially calendared for a merits hearing. Then, depending on when the alien requests the relief during procеedings, different eligibility requirements and conditions must be met.
1. Requirements and Conditions Under Section 240B(a) of the Act (In Lieu of Being Subject to Removal Proceedings)
An alien who wishes to voluntarily depart the United States instead of being subject to removal proceedings may apply for voluntary departure with the Service. See
The Service may attach to the granting of voluntary departure any conditions it deems necessary to ensure the alien‘s timely departure from the United States, including the posting of a bond, continued detention pending departure, and removal under safeguards.
If a voluntary departure application is pending with the Service after the commencement of removal proceedings, the Service counsel may notify the Immigration Court of the pending application.
Finally, we note that the federal regulations authorize the Service to revoke voluntary departure if, subsequent to the granting of a voluntary departure application under
Once removal proceedings have been initiated, an alien may apply for one of two types of voluntary departure with the Immigration Judge, rather than the Service, depending on when the alien requests the relief.
2. Requirements and Conditions Under Section 240B(a) of the Act (Before the Conclusion of Removal Proceedings)
If an alien applies for voluntary departure before the conclusion of the removal proceedings, no additional relief may be requested. If additional relief has been requested, such a request must be withdrawn.
The Immigration Judge may not grant a voluntary departure period exceeding 120 days and may impose other conditions as deemed necessary to ensure the alien‘s departure, including the posting of a voluntary departure bond to be canceled upon proof that the alien has departed the United States within the time specified. Sections 240B(a)(2), (3) of the Act;
Finally, neither the Act nor the regulations require that the alien show good moral character under section 240B(a) of the Act, although the alien must merit a favorable exercise of discretion. Therefore, in the case before us, we find that the Immigration Judge was incorrect in stating that the respondent must demonstrate good moral character for a period of 5 years preceding his application for voluntary departure.
3. Requirements and Conditions Under Section 240B(b) of the Act (At the Conclusion of Removal Proceedings)
Different requirements and conditions arise if an alien applies for voluntary departure at the conclusion of removal proceedings under section 240B(b) of the Act. First, the alien must have been physically present in the United States for at least 1 year immediately preceding the date the Notice to Appear was served under section 239(a) of the Act,
Like section 240B(a) of the Act, section 240B(b) requires an applicant for voluntary departure to provide the Service with travel documents.
B. Differences Between Requirements and Conditions Under Sections 240B(a) and 240B(b) of the Act
It is clear from the significant differences between voluntary departure under sections 240B(a) and 240B(b) of the Act that Congress intended the two provisions to be used for different purposes. While the requirements for voluntary departure under section 240B(b) resemble those of voluntary departure under former section 244(e) in deportation proceedings, section 240B(a) requires much less from the alien. Under section 240B(a), an alien need not show that he has good moral character or that he has the financial means to depart the United States. An alien must request section 240B(a) relief either in lieu of being subject to proceedings, or early in removal proceedings. He must also voluntarily forego all other forms of relief. Thus, Immigration Judges can use section 240B(a) relief to quickly and efficiently dispose of numerous cases on their docket, where appropriate. We accept the need for such a tool and support its purpose. However, we nоte that discretion remains a required element of voluntary departure under both sections 240B(a) and 240B(b) of the Act.
The Board ruled in Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972), that many factors may be weighed in exercising discretion with voluntary departure applications, including the nature and underlying circumstances of the deportation ground at issue; additional violations of the immigration laws; the existence, seriousness, and recency of any criminal record; and other evidence of bad character or the undesirability of the applicant as a permanent resident. We further stated that discretion may be favorably exercised in the face of adverse factors where there are compensating elements such as long residence here, close family ties in the United States, or humanitarian needs. Id. at 248; see also Campos-Granillo v. INS, 12 F.3d 849 (9th Cir. 1994) (holding that in exercising discretion as to whether to grant or deny voluntary departure requests, the Immigration Judge must weigh both favorable and unfavorable factors by evaluating all of them); Matter of Thomas, 21 I&N Dec. 20 (BIA 1995). We find that these factors, which we have enunciated as pertinent to the exercise of discretion under section 244(e) in deportation proceedings, are equally relevant to the exercise оf discretion under section 240B of the Act in removal proceedings. However, an Immigration Judge has broader authority to grant voluntary departure in discretion under section 240B(a) than under section 240B(b) or former section 244(e).
Further restrictions and penalties also exist under both parts of section 240B of the Act. First, an alien is ineligible for voluntary departure under section 240B if the alien was previously permitted to so depart after having been found inadmissible under section 212(a)(6)(A). Section 240B(c) of the Act. However, we note that an alien who received voluntary departure under section 244(e) of the Act in deportation proceedings may receive voluntary departure under section 240B. The new restrictions apply only if the alien was already permitted to depart voluntarily under section 240B.
Also, if an alien is permitted to depart voluntarily under section 240B and fails to depart the United States within the time period specified, the alien shall be subject to a civil penalty of $1,000 to $5,000 and be ineligible for relief of cancellation of removal, voluntary departure, adjustment of status, change of nonimmigrant classification, and registry for a 10-year period. Section 240B(d) of the Act;
III. RESPONDENT‘S APPLICATION
The respondent applied for voluntary departure at his second master calendar hearing, at which point the case was not yet calendared for a merits hearing. Therefore, he applied for the relief before the conclusion of his removal proceedings and must meet the requirements under section 240B(a) of the Act, as well as the federal regulations at
While we note that Congress changed many of the requirements for the relief of voluntary departure in section 304(a)(3) of the IIRIRA, including the elimination of good moral character in section 240B(a) of the Act, an alien must still show that he merits voluntary departure in the exercise of discretion. Although the respondent appears statutorily eligible for voluntary departure under section 240B(a) of the Act, we agree with the Immigration Judge that he does not merit the relief in the exercise of discretion.
In the case before us, the respondent first entered the United States in August 1987 but has departed this country several times. He lives with his two United States citizen children, volunteers at his church, and appears to have no criminal convictions. On the other hand, he has been working without authorization, driving in the United States without a license for a lengthy period of time, and most important, he has entered this country five times without inspection after being permitted to voluntarily depart five times. The record, in fact, reflects that within 3 months before the removal proceedings, the respondent had twice been granted voluntary departure within a matter of days and had immediately reentered the United States without inspection on both occasions. The respondent testified that he has returned to the United States without inspection because he belongs with his two children and their mother. See Campos-Granillo v. INS, supra, at 852. The Immigration Judge could reasonably conclude on the facts of this case that the respondent simply viewed grants of voluntary departure as a means to avoid immigration proceedings, or bring them to a close, by leaving the United States briefly and reentering illegally in hopes of not being apprehended again.
We agree with the Immigration Judge that the respondent‘s equities are outweighed by his adverse factors, particularly his immigration history and the nature of his entries into this country. Given the respondent‘s past immigration history, it seems quite unlikely that he would remain in Mexico until he is afforded the opportunity to legally immigrate to this country. We therefore find that the Immigration Judge properly denied the application for voluntary departure in the exercise of discretion.
The conditions under which respondents are eligible for voluntary departure have been meaningfully expanded under the new provisions of section 240B(a) of the Act. We think Congress contemplated that the
ORDER
The appeal is dismissed.
In re Eloy ARGUELLES-Campos, Respondent
File A73 000 231 - San Diego
Board of Immigration Appeals
Decided June 7, 1999
Interim Decision #3399
I fully concur in the majority‘s opinion in this case. I write separately to note that the majority decision does not fully resolve all issues pertaining to when an alien is eligible to apply for the form of voluntary departure described in section 240B(a) of the Act,
The Act limits the grant of voluntary departure under section 240B(a) to cases arising in lieu of the alien being placed in removal proceedings, or prior to the completion of such proceedings. The regulations have pegged the definition of “prior to the completion of . . . proceedings” to what transpires at the respondent‘s “master calendar” hearing: the request for relief must be made “prior to or at the master calendar hearing at which the case is initially calendared for a merits hearing.”
While I do not concur in the separate opinion of Board Member Rosenberg, that opinion does accurately note that respondents can lose their rights to apply for the more generous form of voluntary departure provided in section 240B(a) of the Act, or conversely, unwittingly forfeit their rights
It does not appear to be the practice, for example, at either initial master calendar hearings, or at master calendar hearings at which hearings on the merits are scheduled, for Immigration Judges to advise respondents of the availability of “section 240B(a) voluntary departure” and of the conditions that must be met for that form of relief. Since this may constitute the last opportunity for an alien to apply for this relief, the alien may unwittingly forfeit his rights and may find later on that voluntary departure under section 240B(b) (the only type apparently available after the conclusion of the master calendar hearing) is precluded. Given full notice of his rights at the master calendar hearing, the alien may have chosen to seek section 240B(a) voluntary departure.
In addition, aliens may be confused—as apparently are Members of this Board on occasion—as to exactly what constitutes a “master calendar” hearing. The term is not defined in the regulations. In some jurisdictions, virtually all merits cases are preceded by the type of “master calendar” that most closely resembles a “docket call” or “status call” in state and federal trial courts. In other venues, cases are efficiently disposed of during the first and only appearance before an Immigration Judge. Does that single hearing constitute a master calendar hearing? A merits hearing? Or both? However the hearing is denominated, at what point in the hearing does the respondent lose the ability to apply for relief under section 240B(a)? Given the potential importance of this benefit, would it not be appropriate for respondents to be advised of the consequences before that temporal point has passed?
Therefore, I would first suggest that at each hearing, Immigration Judges state for the record what type of hearing is occurring—a master calendar or an individual merits hearing.2 Second, because section 240B(a) voluntary departure is only available during certain portions of removal proceedings, the Immigration Judge should notify an alien at each hearing whether it is available, what requirements must be met to receive such relief, and at what point it becomes unavailable. In conjunction with this second point, the Immigration Judge should also notify an alien when voluntary departure under section 240B(b) of the Act becomes the only form of voluntary departure available, along with stating the additional eligibility requirements and conditions, such as the shorter departure period.
In re Eloy ARGUELLES-Campos, Respondent
File A73 000 231 - San Diego
Board of Immigration Appeals
Decided June 7, 1999
Interim Decision #3399
I respectfully concur in part and dissent in part.
While I concur, in the abstract, with much of the majority‘s discussion of the present statute governing voluntary departure, I find the regulations governing requests for voluntary departure to be unclear. It seems to me that in issuing a precedent interpreting the statute, and applying the regulations issued under the Attorney General‘s delegated authority to promulgate regulations, we must clarify, for the guidance of the parties and the public, just what those regulations actually dictate.
First, although the regulations are ambiguous as to the respondent‘s right to appeal, in the event of the Immigration Judge‘s denial of voluntary departure sought prior to completion of the removal hearing, the majority assumes that we have jurisdiction to review the denial of voluntary departure without explanation of the scope or extent of our jurisdiction. Second, although the regulations are ambiguous as to the respondent‘s right to a hearing, in the event of a denial of voluntary departure sought prior to completion of the removal hearing, the majority upholds the Immigration Judge‘s order of deportation and dismisses the appeal without explanation regarding the respondent‘s loss of the right to a full hearing.
Third, inasmuch as the majority “disagree[d] with the Immigration Judge‘s statement of the current law with respect to voluntary departure,” Matter of Arguelles, 22 I&N Dec. 3399, at 3 (BIA 1999), and the regulations appear to condition voluntary departure sought prior to completion of the removal hearing on the respondent‘s waiver of a number of fundamental hearing and appeal rights, I question whether the elections made by the respondent in the hearing before the Immigration Judge were knowing and voluntary as required by law. Fourth, given the overall structure of the statute and regulations, the infirmities in the record before us, and the facts pertinent to the respondent‘s request for voluntary departure, I have serious reservations concerning the majority‘s application of the law to the respondent‘s case. Consequently, I dissent.
Section 240B(a)(1) of the Immigration and Nationality Act,
The statute also provides that at the conclusion of proceedings commenced before the Immigration Judge under section 240 of the Act, the Attorney General “may permit an alien voluntarily to depart the United States at the alien‘s own expense if, at the conclusion of a proceeding under section 240, the Immigration Judge enters an order granting voluntary departure in lieu of removal.” Section 240B(b)(1) of the Act (emphasis added). The opportunity for a favorable exercise of this discretionary authority under section 240(b)(1) of the Act is conditioned upon the satisfaction of more stringent statutory requirements.
Unlike a grant of voluntary departure “in lieu of being subject to” removal proceedings or “prior to the completion of such proceedings” under section 240B(a)(1) of the Act, the respondent must have been present in the United States for at least 1 year immediately preceding the notice to appear. Section 240B(b)(1)(A) of the Act. There must be a finding that the respondent is and has been a person of good moral character for at least 5 years preceding the application for voluntary departure. Section 240B(b)(1)(B) of the Act. There must be a finding that he is not deportable under section 237(a)(2)(A)(iii) of the Act,
In addition, such discretionary authority is restricted with regard to the
An alien previously permitted to so depart after having been found inadmissible under section 212(a)(6)(A) of the Act,
Accordingly, the Attorney General has promulgated regulations at
In addition, the regulations extend authority to the Immigration Judges and the Board of Immigration Appeals within the Executive Office for Immigration Review to grant voluntary departure under specified circumstances.
II. JURISDICTION OVER THE ISSUES RAISED BY THE RESPONDENT‘S APPEAL
For purposes of the case before us, it is the regulatory conditions that attach to a grant of voluntary departure prior to completion of proceedings that are most important. According to
A. Issue Presented
The broad issue presented with regard to our jurisdiction is the effect of the statutory scheme—and the regulations implementing the possibility of a grant of voluntary departure after proceedings have commenced, but prior to completion of the removal proceedings—on the respondent‘s hearing rights.
B. Waiver of Appeal of All Issues
The preliminary question presented is whether the respondent has waived “appeal of all issues,” if his request for voluntary departure prior to the completion of removal proceedings is denied. The fourth mandatory condition under
Looking at
However, the regulations also provide that no appeal may be taken regarding the amount of voluntary departure granted, “as distinguished from issues of whether to grant voluntary departure.”
However, if we read
C. Waiver of Other Hearing Rights
It follows that if the appeal rights that are expressly limited in the regulation are circumscribed only by the fact of a grant—but not a denial—of voluntary departure, then the waiver of other incidents of a full removal hearing that potentially benefit the respondent is similarly limited when such a request is denied.
First, the regulation requires that the respondent make no additional request for relief from removal and withdraw any request that may have been made prior to being granted voluntary departure.
A respondent who seeks voluntary departure prior to completion of a removal hearing could be an individual who is eligible for other discretionary relief from removal, such as cancellation of removal, but who fears he has a relatively weak case. Such an individual might be willing to enter into a disposition based on an agreement that essentially constitutes a “bargain” that he will not seek the other form of discretionary relief if he is granted voluntary departure. Similarly, a respondent might conclude that the charges lodged against him by the Service are weak and subject to challenge, but be willing to forego putting the Service to its burden of proving that he is removable by clear and convincing evidence in exchange for voluntary departure, which would relieve him of the stigma of removal. He may wish to take advantage of the possibility of a period of voluntary departure up to 120 days, and of not having to satisfy the good moral character and intent to depart requirements that apply when a respondent waits to apply for voluntary departure after the completion of proceedings.
It is Congress’ intent in providing for voluntary departure prior to completion of the removal proceedings that we address here. If the statutory option of voluntary departure prior to completion of the removal proceedings, as implemented by the regulations, reflects Congress’ intent that the respondent will forego his appeal rights only if he is granted voluntary departure, then I do not see how we can simply dismiss the case before us. The respondent‘s ostensible waiver of his rights to a hearing and to request alternate forms of relief cannot be considered any more effective than his waiver of his right to appeal. See
III. KNOWING AND VOLUNTARY WAIVER OF STATUTORY HEARING RIGHTS
I note that the respondent‘s waiver of his right to a hearing, to request relief, and to appeal must be knowing and voluntary. A waiver is “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). A presumption against such an abandonment of rights exists in the civil as well as the criminal context. See Fuentes v. Shevin, 407 U.S. 67, 94 n.31 (1972). It is clear that “[w]hat
The United States Court of Appeals for the Ninth Circuit has found such waivers to violate due process where the nature of the waiver provided “made it impossible to determine whether [the defendant] made a voluntary and intelligent decision” to waive his right to appeal. United States v. Lopez-Vasquez, 1 F.3d 751, 754 (9th Cir. 1993); see also United States v. Mendoza-Lopez, 481 U.S. 828, 839 (1987) (involving the Immigration Judge‘s failure to explain the aliens’ rights to relief or to appeal and noting that the Government asked the Court “to assume that respondents’ deportation hearing was fundamentally unfair“); United States v. Proa-Tovar, 975 F.2d 592, 593 (9th Cir. 1992) (en banc) (involving a concession by the Government that alien‘s waiver of his direct appeal rights was not knowing and intelligent where alien‘s attorney expressly waived alien‘s right to appeal, but where alien was not properly advised of such right).
The stringent requirement for a knowing and voluntary waiver was reaffirmed in Walters v. Reno, 145 F.3d 1032, 1037 (9th Cir. 1998), cert. denied, 526 U.S. 1003, 119 S. Ct. 1140 (1999), where the United States Court of Appeals for the Ninth Circuit addressed document fraud charges lodged against aliens. Underlying the Ninth Circuit‘s decision in Walters is the recognition that although the United States has extraordinarily broad powers in the area of immigration and border control, it is also well established that aliens facing deportation from this country are entitled to due process rights under the Fifth Amendment. Mathews v. Diaz, 426 U.S. 67, 77 (1976). As the Supreme Court has explained on a number of occasions, the Government is not free to deport an alien from the United States unless it has first accorded him the most basic procedural protections—notice and a hearing at a meaningful time and in a meaningful manner. Landon v. Plasencia, 459 U.S. 21, 32-33 (1982); Bridges v. Wixon, 326 U.S. 135, 154 (1945) (stating that deportation “visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. . . . Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.“).1 A waiver of either of these basic rights is valid only if the Government demon
Moreover, the issue here is not the privilege of voluntary departure, which is subject to the Attorney General‘s discretion, but the right to a full removal hearing, which is an unconditional and fundamental right under the statute. See section 240 of the Act,
It is well established that “[t]he government bears the burden of proving the waiver.” United States v. Lopez-Vasquez, supra, at 754; see also Brewer v. Williams, 430 U.S. 387, 404 (1977) (“[I]t [is] incumbent upon the State to prove ‘an intentional relinquishment or abandonment of a known right or privilege.‘” (quoting Johnson v. Zerbst, supra, at 464)); Barker v. Wingo, 407 U.S. 514, 525-26 (1972) (“Courts should ‘indulge every reasonable presumption against waiver,’ and they should ‘not presume acquiescence in the loss of fundamental rights.‘” (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937), and Ohio Bell Tel. Co. v. Public Utilities Comm., 301 U.S. 292, 307 (1937))). In the instant case, the record does not reflect that a knowing and voluntary waiver was made. No such waiver on the respondent‘s part has been established here.
To the contrary, at a continued master calendar hearing held on May 30, 1997, the respondent conceded that he was removable as charged and was seeking only voluntary departure. The Immigration Judge then advised the respondent that by seeking voluntary departure in this manner, he would “abandon any possibility of any other type of relief, if in fact voluntary departure is granted to you.” (Emphasis added.).2 The Service indicated that it saw no statutory bars, but that it would oppose voluntary departure. There is nothing at all on the record that indicates the respondent ever was advised that—were he to be denied voluntary departure—he would aban
The fact that an appeal was filed and responded to in this case illustrates rather dramatically that the parties did not understand that “appeal of all issues” would be waived by virtue of the respondent‘s seeking voluntary departure. Cf.
IV. CONSIDERATION OF VOLUNTARY DEPARTURE AS A MATTER OF DISCRETION IN THE RESPONDENT‘S CASE
It is established that “[t]he grant of voluntary departure is a matter of discretion and administrative grace. An applicant for voluntary departure bears the burden of establishing both his statutory eligibility for such relief and that this privilege should be accorded to him in the exercise of discretion.” Matter of Thomas, 21 I&N Dec. 20, at 22 (BIA 1995) (citations omitted); see also
Nevertheless, while recognizing the mutually beneficial trade-off inherent in voluntary departure as a form of discretionary relief, in Contreras-Aragon v. INS, 852 F.2d at 1095, the Ninth Circuit cautioned:
Courts have long recognized that a judicial officer may not exact a price for the taking of an appeal. See North Carolina v. Pearce, 395 U.S. 711, 724, (1969); Worcester v. Commissioner, 370 F.2d 713, 718 (1st Cir. 1966); and Short v. United States, 344 F.2d 550, 552 (D.C. Cir. 1965). As the Supreme Court said in the context of criminal proceedings, “the imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal . . . would be . . . a violation of due process of law. . . .” . . . [North Carolina v. Pearce, supra, at 724.] . . . Moreover, we have held that the INS may not condition voluntary departure upon the relinquishment of a protected right. (Citation omitted.)
In determining whether a favorable еxercise of discretion is warranted with regard to a request for voluntary departure, an alien‘s prior immigration history, the nature of his entry or entries, violations of immigration and other laws, and the like may be considered. Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972); Matter of M-, 4 I&N Dec. 626 (BIA 1952). Discretion may be favorably exercised in the face of adverse factors where there are countervailing equities such as long residence here, close family ties in the United States, or humanitarian needs. Matter of Gamboa, supra. For example, reiterating the recognition that “[i]t is difficult and probably inadvisable to set up restrictive guide lines for the exercise of discretion,” because “[p]roblems which may arise in applications for adjustment must of necessity be resolved on an individual basis,” the Board held in Matter of Arai, 13 I&N Dec. 494, 495-96 (BIA 1970), that determinative weight may be given to family ties and, particularly, marriage to a United States citizen.
Considering the respondent‘s situation in this framework, I note that the principal adverse factor in the respondent‘s case is his propensity to return to the United States after departing voluntarily. Although the respondent appears to have departed whenever allowed the opportunity to do so voluntarily, he has returned soon aftеr such departures. However, as an applicant for voluntary departure before the completion of removal proceedings, he is not required to establish that he has the means and intent to depart. Cf.
The majority opinion, like the Immigration Judge‘s denial of voluntary departure, sidesteps the two critical issues presented by the respondent‘s appeal: whether the respondent had adequate notice of what he was waiving by seeking voluntary departure, and whether he was properly notified of the standard under which his request for voluntary departure would be adjudicated. Under these circumstances, I cannot agree that the Immigration Judge‘s denial of voluntary departure on discretionary grounds should be upheld. Rather, I believe that the case should be remanded to the Immigration Judge, who should properly inform the respondent of his opinions in relation to the possibility of seeking voluntary departure.
In particular, the Immigration Judge should explain that the respondent may opt to seek voluntary departure prior to the completion of proceedings as provided in the regulations, or at the conclusion of proceedings, as provided in the regulations. The Immigration Judge must explain to the respondent the differences in the requirements that attach to each of these potential forms of voluntary departure, and the Immigration Judge must apply these different restrictions according to the form of voluntary departure, if any, that is sought by the respondent. After explaining these options, the Immigration Judge must obtain a waiver that is both knowing and voluntary before any such waiver will be effective.
V. CONCLUSION
The record on appeal before us is so confused with erroneous information and unreliable interpretations of the current law of voluntary departure that the respondent cannot be said to have been properly notified of his burden in seeking voluntary departure before the completion of removal proceedings. Under the circumstances of the case before us, the respondent did not make a knowing and intelligent waiver of his hearing or appeal rights. Consequently, I would remand the record to the Immigration Judge for further proceedings consistent with the authority cited in my concurring and dissenting opinion.