Just make sure you stay in touch with your lawyers.” Bachynskyy did not specifically request voluntary departure at this hearing, and the IJ did not discuss the possibility or requirements of voluntary departure at the conclusion of the hearing. The INA specifically requires that “[t]he order permitting an alien to depart voluntarily shall inform the alien of the penalties under this subsection.” 8 U. In the written decision, issued only three days after the hearing, the Immigration Judge denied Bachynskyy's withholding and Convention Against Torture claims, but granted Bachynskyy voluntary departure. The order stated that Bachynskyy was required to post a 0 bond within five days. The Board dismissed Bachynskyy's appeal and rejected his request to reinstate voluntary departure. If the bond is not posted within five business days, the voluntary departure order “shall vacate automatically and the alternate order of removal will take effect on the following day.” Id.
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Before WILLIAMS and TINDER, Circuit Judges, and GOTTSCHALL, District Judge.* Justin R. Following a split in the circuit courts, the issue reached the Supreme Court in 2008 in Dada v.
Burton, Matthew Scott Kriezelman (argued), Attorneys, Kriezelman Burton & Associates, Chicago, IL, for Petitioner. Mack (argued), OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Nazar Bachynskyy is a twenty-eight year old Ukrainian citizen who entered the United States without being admitted or paroled. § 1229a(c)(7) (granting a noncitizen the right to file one motion to reopen and providing that “the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal”).
After being turned over to the legacy Immigration and Naturalization Service at a truck stop weigh station, removal proceedings were commenced. § 1229c(b)(2) (related to voluntary departure and stating that the period within which the alien may depart voluntarily “shall not be valid for a period exceeding 60 days”). In certain cases, noncitizens were subject to civil penalties for failing to depart when choosing to exercise their right to file a motion to reopen.
Bachynskyy conceded removability, but sought withholding of removal and protection under the Convention Against Torture. Before the change in the regulations, noncitizens began to get caught between the numerical time limit in the voluntary departure provision, and the statutory right to file a motion to reopen. The INA also permits noncitizens an opportunity to file a motion to reopen within 90 days of a final order of removal. And if they chose to depart, their departure would result in automatic withdrawal of a pending motion to reopen.
At the conclusion of the hearing on his claims, the Immigration Judge stated that she was continuing the case for four months, but stated that “[i]f I render a written decision before that date, you don't need to come back to court. The voluntary departure provision requires that noncitizens depart within 60 days after being granted such relief.
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